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Ash
Ash, Solicitor
Category: Property Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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Can someone please explain "Pre Action Protocol for Posession

Resolved Question:

Can someone please explain "Pre Action Protocol for Posession Claims"?

We have a 100% Buy to Let loan, taken out over two years ago.

The loan is excluded from 1974 Consumer Credit Act. We are in dispute with the lender as to the terms of the agreement and how interest is being calculated.

We have had considerable advice from the office of the Financial Ombudsman, who agreed with the lender that they are not regulated by the FSA, if a Court was to open the agreement, then the loan would be then regulated by the FSA and the Ombudsman can intervene?

I tried to communicate with the lenders Solicitor, who repeatedly hung up on me as said "See you in Court". They also say that we have the "threat to refer the matter to the Financial Ombudsman Service - We also note that no complaint has been made" - which is obviously untrue! They also contend that the complaint is not suitable for consideration by the FOS on the basis it has no merit".

We have 5 days from the date of their letter to comply with their demands or proceedings would be taken against us without further notice.

The conduct of the loan company and the solicitor has been one of bullying.

Any advice on this would be gratefully received.

Regards,
Submitted: 2 years ago.
Category: Property Law
Expert:  Ash replied 2 years ago.

Alex Watts : Hello my name is XXXXX XXXXX I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return You do not need to wait here as you will get an email when I reply.
Alex Watts : I assume you owe arrears, if so how much?
Customer: We have continued to pay the monthly payments but not the increase as
Customer: Hello Alex,
Customer: we have continued to pay the normal monthly payments, but not the increase, as the ombudsman agreed it was calculated incorrectly, and we also believe they have not adhered to their own terms and conditions of the loan.
Customer: thebadvice of the ombudsman was to wait for them to sue us, and ask the court to open the loan
Alex Watts : Ok. So would they take you court on the baiss of loan arrears?
Customer: The loan arrears that have been calculated by then incorrectly
Alex Watts : The protocol is here
Alex Watts : http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_mha
Alex Watts : It sets out in detail what they need to do and process to follow.
Alex Watts : Here is the checklist the court will need to see
Alex Watts : http://www.cml.org.uk/cml/filegrab/checklistfrom6april2010.pdf?ref=7154
Alex Watts : Can I clarify anything for you please?
Customer: On the checklist:
Customer: The following mortgages fall within the scope of the Protocol and Checklist –(i) first charge residential mortgages and home purchase plans regulated by the Financial Services Authority under the Financial Services and Markets Act 2000;(ii) second charge mortgages over residential property and other secured loans regulated under the Consumer Credit Act 1974 on residential property; and(iii) unregulated residential mortgages.
Customer: it would seem this loan is excluded as it is an unregulated no residential mortgage?
Customer: Non residential ...
Alex Watts : Ah non residential. There is only a mortgage protocol for residential not business.
Alex Watts : But if they do try and issue proceedings you can defend and counter claim on the basis you have set out above.
Alex Watts : Can I clarify anything for you?
Customer: Also, non of this has been done by the lender ...
Customer: 7 Further matters to consider before starting a possession claimStarting a possession claim should normally be a last resort and such a claim must not normally be started unless all other reasonable attempts to resolve the position have failed. The parties should consider whether, given the individual circumstances of the borrower and the form of the agreement, it is reasonable and appropriate to do one or more of the following –(1) extend the term of the mortgage;(2) change the type of mortgage;(3) defer payment of interest due under the mortgage;(4) capitalise the arrears; or(5) make use of any Government forbearance initiatives in which the lender chooses to participate.
Alex Watts : The judge can consider whether they have complied with the spirit of the protocol even for non residential.
Alex Watts : But in any event you can defend and counter claim if they try and issue possession proceedings.
Alex Watts : Does that claiify?
Customer: Thank you Alex
Ash, Solicitor
Category: Property Law
Satisfied Customers: 10915
Experience: Solicitor with 5+ years experience
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