IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION Claim No:
MRS FLAVIA FATIMA FERNANDES Claimant
BIRMINGHAM MIDSHIRES Defendants
(a division of BANK OF SCOTLAND plc)
PARTICULARS OF CLAIM
1. At all relevant times the Claimant was the mortgagor and the Defendants were the mortgagee in respect of the purchase and sale of the property known as Flat 520, Omega Building, Smuggler’s Way, Wandsworth, London SW10 (hereinafter “the property”).
2. On or around the 12/03/2004 the Claimant purchased the property on a “buy-to-let” mortgage advanced to the Claimant by the Defendant in the sum of £397,800. The property was purchased by the Claimant of £468,000 at the time.
3. The Defendant repossessed the property in November 2008 and hastily sold the property at an undervalue to the detriment of the Claimant’s interest.
4. The true nature of the transaction as particularised above was such as to:
- cast doubt upon the Defendants professionals and raises a question of a prima facie case of deceit and fraudulent misrepresentation, which will be registered with the appropriate authorities;
- and/or the bona fides of the Defendants as the Claimant’s mortgagee.
5. The admission of gross negligence by the Defendant’s professionals does not absolve the Defendant and by implication the Defendant is in breach of contract as well:
- Breach of contract by misrepresentation
- Breach in that they failed to act with all reasonable skill and care
6. As a result of the failure to achieve the rental stream, in or around 2006 and by reasons of the same the Claimant defaulted on her mortgage covenants by becoming in arrears of her mortgage repayments and on or around the same time the Defendants commenced possession proceedings in the Edmonton County Court.
7. At all relevant times the Defendants owed the Claimant the following fiduciary duties:
(a) To act in good faith;
(b) To exercise proper duty of care in tort
(c) As a mortgagee in possession to take reasonable precautions to obtain the best or proper price for the property at the date of sale.
8. At all relevant times, the Defendants knew or ought to have known that the property was resold by the Defendants at an under-value.
9. Further or alternatively, the Defendants acted in breach of their fiduciary duties to the Claimant.
PARTICULARS OF BREACH OF DUTY
The Defendants wrongfully
(a) Repossessed the property and hastily sold it March 2009 at the sale price of £310,000;
(b) Caused a shortfall of £155,250.63 at the property in respect of the Claimant’s account as at the date of the said sale.
(c) Failed to adequately mitigate their losses against their professionals in respect of their admitted negligence.
(d) Failed to advertise and/ or properly market the property with a view to obtaining the best or proper sale price
(e) Declined to consider or accept prospective buyers introduced by the Claimant on the 05/02/2008 and the 24/03/2008 which buyers sought to buy the property at the prices of £390,000 and £410,000 respectively;
(f) Applied exorbitant and excessive administrative fees to the Claimant’s account and failed to account to the Claimant when requested.
(g) Failed to fully disclose adequately all the information so requested.
(h) Applied for and obtained a charging order hastily without firstly establish and quantify the indebtedness.
10. As a result of the matters set out above the Claimant has been put to trouble and considerable expense and damage to her domestic relationship and health.
PARTICULARS OF SPECIAL DAMAGE
(a) The sale of the property by the Defendant resulted in a shortfall on the Claimant’s account in the sum of £155,250.63.
(b) The Claimant incurred out-of-pocket expenses including legal fees in her failed attempt to resist the Defendants’ repossession and sale of the property.
11. Further, the Claimant claims statutory interest under section 35A of the Supreme Court Act 1981 on the amount found to be due to the Claimant or at such rate and for such period as the Court think fit.
12. The parties have complied with the requirements of the Practice Direction-Pre-Action Conduct.
And the Claimant claims:
(i) Loss on undersale of property of £165,000;
(ii) Damages to be assessed by the court;
(iii) Interest under section 35A of the Supreme Court Act 1981to be assessed;
(iv) Interest incorrectly charged to the mortgage to be quantified.
(v) Further or other relief.
STATEMENT OF TRUTH
I believe the facts stated in this Particulars of Claim are true.
Name: Flavia Fatima Fernandes
Dated: 25th February 2015.