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Senior Partner
Senior Partner, Solicitor
Category: Law
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Experience:  Solicitor with more than 30 years experience
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Mortgagee appoints receivers who take possession of a buy

Customer Question

Mortgagee appoints receivers who take possession of a buy to let property under LPA.
Mortgagors Son immediately after Receivers appointment pays mortgage arrears and 3 months in advance directly to the bank ( Does that action remedy the original breach ?) Mortgage payment then paid by son regularly and correctly on the understanding that the property will be handed back.
Some 2 years later mortgagees decide to sell as Father becomes bankrupt a year after receivers appointment Son offers to redeem mortgage ( sale Should be halted ?) Administration of Justice act s36 ? could Son apply to court under s36? If not what option regarding Court Applications does Son have ?
I would be grateful for your guidance
Robert Kent (Son) !
Submitted: 2 years ago.
Category: Law
Expert:  Senior Partner replied 2 years ago.
Thank you for your question. If Understand you correctly:
a This is a buy to let property
b) The owner - your father - is( or was ) bankrupt
c) although you have paid some of the mortgage you have not taken any legal interest or second charge over the property.
You do not say whether there is any equity or whether the bank has refused your offer to repay or on what terms you offered to do this. You do not say whether the bank ever discharged the receivership - which one might have expected if the full arrears were discharged.
The first thing to say is that s36 is irrelevant. It applies if a mortgagee seeks possession. There is no need of them to do that if it is a buy to let property as the mortgagor s not in possession the tenant is - if there is one- and if they have appointed an LPA receiver they can sell without a court order. The only time s36 is relevant is when the mortgagor is in occupation and a possession order is sought.
I cannot see why the bank would not accept a full discharge if offered one - why should they care where the money comes from as long as it is lawful - but I cannot see that it is necessarily of benefit to anyone to do this.
If your father is bankrupt then any equity in the property can be claimed by his trustee. If you pay off the mortgage by way of gift you may simply be enhancing the value available to his creditors and if you seek to get security for the money as a loan that may be attacked and the transaction set aside. If your father has been discharged I would still ask the trustee to confirm that he will not make any claim in the circumstances.
If the trustee is not pursuing the property then presumably there in no equity in which case why bother to pay the bank off?
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Category: Law
Satisfied Customers: 13323
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Customer: replied 2 years ago.

Good Morning

Thank you for your answer.

I am at the stage where I want to halt the of the property because

a) I believe I have beneficial intrest and are supply documentation to support this

b) There is equity in the property of about £60k

What i am trying to do is halt the sale of the property which I believe to be imminent, whilst I submit documentation to the Trustee supporting my beneficial intrest claim, once I have submitted the documentation the percentage of my intrest can be considered and then that percentage paid to the trustee

Is there any application I can make to the court to enable me to suspend the sale ?

Robert Kent

Expert:  Senior Partner replied 2 years ago.
Hi Robert
Where property is held on trust as you are claiming here then in the absence of an express trust the propearth will be held on trust for sale I.e. To be sold and proceeds divided . so preventing a sale by the title holder I.e the trustee or the mortgagee is the exact opposite of what theblaw requires. I assume that you agenda here is to prevent a sale at an undervalue by the receiver and/or to buy the property out from the trustee. you need clearly to reach an agreement with the receiver. There is no legal proceeding you can bring to prevent a sale although you could try and register a restriction with the land registry . This can prevent temporarily a transfer but can be removed by the owner.
I think you need to agree something with the trustee and then put a proposition to the bank.
Customer: replied 1 year ago.


Thank you for your reply it is very intresting being in contact with you although I feel my claim to this property is sliping away.

Are we saying I have no immediate cover bearing in mind the building society have accepted my money in respect of mortgage payment and the clearing off the mortgage arrears and no response from my offer to redeem.

I was hoping the redemption could run along side the arrangements with the trustee/ giving me clear title

Im not asking for a lot just need a thread of law to stay in the game hence the s36 application as litigant in person to slow down the process


Customer: replied 1 year ago.

6 Dean Mead



CT19 5TY


Platform Home Loans

PO Box 237



Dear Sir/Madam

I am writing to you as a result of my conversation yesterday with a member of your mortgage team.

I would suggest as a matter of urgency that this matter is passed to a senior member of the bank.

As a result of my telephone conversation yesterday I am concerned that this case has got to a point of crisis.

A property being repossessed and sold with no mortgage arrears

I am concerned that this has only become the potential end result due to a combination of inconsistencies, incorrect procedure by the bank and simple miss understandings

The purpose of this letter is to address my concerns.

A pre cursor to any potential claims by myself against the bank which at this stage can be halted, if my issues are resolved and hopefully we can arrive at a solution suitable to all parties involved

I draw your attention to the following issues

I have instructed solicitors Messer’s Boys and Maughn to deal with my claim in respect of beneficial interest regarding this property.

Boys and Maughn have been in contact with Walker Morris Solicitors appointed by Anthony Jorden and Anthony Salata of Jorden Salata appointed by you as receivers.

Walker Morris gave a reasonable explanation as to why our claim for beneficial interest is more of an argument to pursue with my father’s trustee in bankruptcy Messer Capital Brooks.

With exception to the fact they mention, my claim for equitable interest in the property does not affect the ability of the lender to enforce its security.

I believe when you unpick the circumstances in this matter there is an issue regarding the ability for yourselves as the lender to enforce security.

In February 2013 I paid over the phone with my debit card the outstanding mortgage arrears and 3 mortgage payments in advance.

I did this on the understanding that the property would be taken out of the receivers control and handed back.

There was never on acceptance of this payment and acceptance of the 3 month mortgage payments in advance any suggestion that this was a payment on behalf of my father but a payment from me to regain control of the property.

Surely any reasonable person would agree that if this was not the agreed situation why I would make the effort to undertake such a payment

This arrangement was subject to a further 6 months payment being made on time, and the completion of an income and expenditure form.

I m sure there is no disagreement that the mortgage was paid on time, I think it is easier for your accounts department to check it was by direct debit from my account (RF Kent Trading as Evolution sort code 30 93 34 Account Number 00225106 or by cheque from the same account.

Whilst it is fair to suggest that some of the payments were made on behalf of my father a majority of the mortgage payments were made by myself to the mortgage account to protect my interest

At a later date once the 6 month period had elapsed and payment history was evidenced to be satisfactory the bank would look to add my name to the mortgage therefore protecting my interest

I can recall talking to Jorden Salata who referred me to Connells and they said that this was an unusual case due to the arrears being paid and felt it was only a matter of time before the property would be handed back

I believe if you check back on your records on average I call the bank once a month to check on an update regarding this property

I raised the issue relating to my requests to have my name added to the mortgage. Letters requesting my name to be added to the mortgage were acknowledged by you requesting further authority from my father which was supplied.

I was referred to the mortgage processing team and at no stage was there any suggestion of a refusal to carry out this request.

Yesterday I was told that this would now not be possible as my father did not fall into the criteria that the bank considers lending to.

After giving yesterdays phone conversation further thought this is a situation that I feel I am entitled to more information. If what I was told yesterday is correct all of your buy to let mortgages on your books relating to people of my father’s age will now be considered as to be ceased?

I was also told yesterday that the reason the mortgage was not in arrears was not due to my payment s but due to rent al income received.

This is alarming because not only is it not true but if that was the case I can understand why the bank is taking such a course of action.

On the 22nd September 2014 I spoke to ***** *****e of Connells LPA Team.

I had previously called the bank on the same day enquiring what was happening regarding the property.

On that conversation to yourselves there was still a clear indication that it was your intention to have the property taken out of the receiver’s control.

My telephone conversation of the 22nd September raised the question of rental income being the reason why there was no mortgage arrears, the person I spoke to was then able to confirm receipts of payments from myself regarding the mortgage payments

Unfortunately the same confirmation was not forthcoming when I called yesterday

It was agreed that I would be best speak to the receivers and in turn they would speak to yourselves

The conversation with ***** *****e was concerning stressful but at least productive.

I informed ***** *****e of an attempt by Capital Brooks to sell the property having marketed it with the agent Sibley Pares.

I was aware that the receiver appointed in relation to my father’s bankruptcy authority was not superior to receivers appointed by yourselves

The conversation with ***** *****e was frank and helpful.

He confirmed Mr Mubarik of Capital Brooks had been obstructive and unhelpful in this matter

I raised the point that I believed Capital Brooks were undertaking to sell the property.

***** *****e confirmed my belief that this could not happen.

I suggested to ***** ***** that either Connells or I should take possession of the property by instructing locksmiths to change the locks.

I stood aside and allowed Connells to take this option, bearing in mind I had spoken to you on the same day the option of my name being added to the mortgage was still being considered.

I explained to ***** *****e I would need to have a contact so I could get a key to the property to arrange for a valuer to visit the property in the event that I would need to raise funds to clear the outstanding mortgage with you. I have an agreement in principle

***** *****e commented that this was an unusual situation as there were no mortgage arrears and that he would keep me updated regarding keys and access

I rang ***** *****e yesterday and he told me that the property is now being marketed again and I would have to join any other prospective purchasers and effectively bid for a property that I have an interest in.

It is due to my intervention and monitoring of this situation that you are now in the convenient position to sell the property clear the mortgage and pay the professional fees regarding the appointments made by these specialists.

Effectively disregarding my contact, interest, and requests which are unfair unreasonable and only come about by procedural irregularities and a contractual breach.

I suggest we both agree that a central problem is lack of written confirmation particularly after telephone conversations with various representatives of the bank and me agreeing a course of action. I have been in contact by phone regularly with Platform Homeloans since 2005 and it has always worked well until receivers were appointed

I believe there was always an intention to take the property out of receivers control .

Lack of documented offer and acceptance conduct was overshadowed by phone calls as if the receiver was no longer appointed in fact at one stage I believed the property had was back in our control because payments were being taken by direct debit.

I await a speedy response due to the urgency of this situation and the stress and strain it is inflicting on me and my family

Should you require I am happy to attend your offices in Plymouth for a meeting to bring this matter to conclusion?

I think this is an unusual situation bearing in mind that there are no mortgage arrears and my relationship with you over the years regarding contact, payments, and agreement to various arrangements

Yours Faithfully

Robert Kent

Expert:  Senior Partner replied 1 year ago.
Hi Robert
Thanks for the further info. The only way you can slow the process is to file a unilateral notice with the land registry.
If you have a solicitor they can help to do this. It may at least slow the process.
The legal position is that the fact you paid the mortgage has no impact on the mortgagee. It was up to you to document the arrangement with your father - either as a loan or otherwise. Transferring an interest to you would have been a breach of the mortgage without the lenders consent and would not override the mortgage or their right to sell.
I have to be honest and say your letter to Platform was not very clear. You need to put a clear proposal to them. Just making a complaint will not achieve what you want. You need to get an agreement with the trustee in bankruptcy and make a clear offer to buy the property out. I do not know if Platform are actually the owner of the loan - they administer loans for third parties - you may need to get to the real owner.
Part of the problem may well be your claim. If the mortgage lender thinks they are going to be faced with another beneficial owner etc they may simply want to sell the property to get rid of the mortgage. So as I say you need to be able to offer to buy it on terms agreed with the trustee. If the trustee will accept your beneficial ownership claim that will presumably facilitate such a buy out.
Customer: replied 1 year ago.


Still hanging on a thread in relation to this situation

I’m going to email platforms solicitors today having considered your advice.

I have already asked for a figure to redeem the mortgage. By way of recorded delivery to platform and to platforms solicitors, I have heard nothing

Would I have any strength in an argument pursuing this even on the reasonableness argument that we should at least have a chance.

The short and simple route is to redeem the mortgage in parallel with negotiating with the receiver the beneficial interest argument agreeing a deal with the receiver based on the percentage of documentation I can submit to support my beneficial interest

Robert Kent

Expert:  Senior Partner replied 1 year ago.
Thanks for the update. It clearly makes sense to put a firm proposal to them. My concerne is how you are going to manage redeeming the mortgage unless you reach a deal with the trustee. It is presumably in his interest to get the equity for creditors and he will need to consent to any remortgage unless you can buy it out for cash.
Customer: replied 1 year ago.

Good Afternoon

I have copied regarding the on going saga in relation to this property

I had virtually given up hope with this matter until the reciept of this letter

Does this letter strenghten my arguemet for the property not to be sold, I have tequested I or my Father be alloed to redeem the mortgage and this has been rejected

Would I have a better chance of seeking a remedy if I commeneced proceedings against the lender in a court of equity

Contracts so far have not been exchanged

Robert Kent

platforrn e

The intermediary lender of The cooperative bank

P.D. Box 237 Plymouth PL1 1WG OX 133791 Plymouth 13 Fax [01752]265341

Mr J H Kent

6 Dean Mead





Our Ref:



Dear Mr Kent

Re:*****Hythe Kent CT21 6J5

Due Date: 01/12/2014

Total Monthly Payment Due: £106.58

Arrears: £76.58


. -=== iiiiiiiiiiiii

,-.--.----- - .-:

.--- - .~.-YQill m.Q...r.1;g~count is in.auears you are charged interest on your arrears balance. The interest on your

arrears balance will be shown separately from your mortgage balance in your future statements. Please note that we

will not charge further interest on this amount.

We are writing to provide you with important information about your current arrears balance, and how this will be

shown in your future mortgage statements. Please note that no action is required on your part as a result of this


=-== --- This will mean that you will:

- see the interest charged on your arrears as a separate item on future statements.

- have the ability to payoff this amount once you have fully repaid your arrears; we will write to you to confirm the

total amount separated from your mortgage balance along with options to pay.

If you have any queries and would like to discuss this matter further please call 01752 236243.

We would remind you that if in any month you fail to make your full mortgage subscription a charge of £38.00 will be

debited to your main mortgage. This is in addition to any administration charges for handling unpaid payments.

Please note information concerning accounts may be registered with Credit Reference Agencies; details relating to any

arrears may affect your ability to obtain other credit.

Yours sincerely

Nick Dawe - Lead Operations Manager


Customer: replied 1 year ago.

Good Evening

I am still waiting for an answer to my email of the 29th November

Which is itemised below

Robert Kent

Expert:  Senior Partner replied 1 year ago.
Hi I have not been online recently so had not seen your post. this looks like a standard letter about treatment of arrears as the FCA does not like arrears being capitalised but if you are still paying then certainly it may help that they have written saying they will give you options to pay. I assume you will wait to hear further.
Customer: replied 1 year ago.


I agree this is a standard letter and would think it shouldnt have been sent.

But the fact it has been sent and the wording of the letter suggests the appointment of recievers would be struck out if I pay the outstanding arrears

How to I go about making an application in equity ? regarding this matter

Robert Kent

Customer: replied 1 year ago.

Good Morning

I understand you must be very busy.

I wonder if you have had time to look at the matters I raised yesterday ?

Robert Kent

Expert:  Senior Partner replied 1 year ago.
I have done a little research as this is not an usual situation. The fact is that an LPA receiver ows limited duties to the freeholder and it is difficult to see why a court would order the discharge of a receiver. You might be better to have another go at getting the receiver discharged by platform. I think if you want to go to court you would have to make a petition to the insolvency court.
Customer: replied 1 year ago.

Hi Thank you for your reply

I agree that the LPA reciever o***** *****mited duties to the freeholder, but Platform owe some obligation to there customer ie my Dad and myself as they have been accepting my money. Which is why I wonder If an equitable remedy could help me.

Bearing in mind no mortgage arrears,

Agreement between platforms agents and myself, regarding the possession they took with my consent and assistance. To protect the property from being sold by the reciever acting on behalf of the insolvency service allowing me to redeem the mortgage ,

Refusal to allow mortgage to be redeemed

Most recently the standard form of letter sent and copied to yourself on the 29th November 2014.

The Insolvency Court was The Royal Courts of Justice would it be worth going there and filing a petition ? against the reciever or platform although lawyers are acting for both I would assume .

I take your point that this is not a usual situation, I think its an absolute cock up by reciever platform lawyers etc etc, but a cock up I can play to my advantage if I can get some form of procceding commenced because I believe a judge would look at this situation very unfavourably bearing in mind the conduct of so called proffessional people and organistaions

Robert Kent

Expert:  Senior Partner replied 1 year ago.
Have you made -or rather had your father made- a formal complaint? If you have or do and they do not resolve it to your satisfaction then you could try threatening them with the ombudsman. The problem is as you know commercial lending is unregulated at the moment but stirring it up that way may have some effect.
You can try going to court but it is not straightforward and I think you will need a lawyer. Additionally you could be exposed to a lot of costs if you fail which you well might.
Customer: replied 1 year ago.

Yes a compaint has been made, platform are being slow to respond,

The sale of the house has still not exchanged, I have sent a friend into the agents. and they have said there is a dispute so not easy to complete a sale yet

I want to commence proceedings I think that will bring all this to a head I feel I carry more weight as litigant in person

so complain to finnancial ombudsmen / Go to insolvency court ( Royal Courts of Justice) What are your thoughts regarding Court of Equity ?

Robert Kent

Expert:  Senior Partner replied 1 year ago.
There is no such thing as a court of equity any more. Any court can apply equitable rules although pure equity claims normally go into chancery division. I think it is the insolvency court you have to go to which is chancery anyway. I am reluctant advice you to do that however because it can be expensive and I think you claim is tenuous. The mortgage was in default so they can sell even if the arrears are paid off unless you can redeem in full.
Customer: replied 1 year ago.

Hi Thankyou for your reply

The issue is we do want to redeem in full and not have the property sold.

The last letter from platform I think gives weight to that request

i agree any proceedings would be tenuous, but this situation is such a muddle Im not sure lawyers for platform would want to defend such a claim, surely it would be easier to allow me to redeem and which would be an end to it ?

Robert Kent

Expert:  Senior Partner replied 1 year ago.
I agree but can you redeem? I also agree they will not want a legal fight but platform is part of the coop and despite their problems they will certainly instruct a major law firm and unless you have the funds and experience I would really not recommend you take that route. You are wrong about their lawyers not wanting to defend such a claim - they have a vested interest in dragging these things out. It serves the lawyers. Trying to hassle Platform into agreeing something and complaining about their failure to treat your father fairly is likely to achieve a better result.
Customer: replied 1 year ago.





Sorry for not replying back to you. You assistance in this matter is most helpful.


I have been informed that completion has now taken place in relation to this property.


I am taking your advice and pursuing platform and financial ombudsmen, I am also going to put some correspondence forward to the bankruptcy court.


There are 2 more buy to let properties in my father’s name falling into the same agreement, Platform are mortgagees to one and have made no move towards possession


Is my argument now about defending the remaining 2 properties and my claim to beneficial interest and to ensure that the balance of the sale offsets any counter argument the receiver has relating to my beneficial interest?


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