Hello my name is ***** ***** I will help you with this.
Could you please explain your situation a little more?
Hi. We were granted a mortgage by Totta Santander on a plot of land 1/3 of an acre overlooking the 18th tee on a golf & country club in the Algarve. They valued it at 850,000 euros and offered us a mortgage to build of 600,000 euros. Unfortunately, we defaulted on that mortgage and only got planning permission in the very late stages of this. The mortgage company have repossessed the land but to our knowledge have not attempted to sell it or dispose of it in any way. Unbeknown to us, as they sent notification of a claim to another Portuguese address. We did not receive this notification and as such they were awarded the sum of £525,000 as a result of the claim. We have been made aware of it now, as a hearing to push through a charge for this amount on our UK property is being heard.
The hearing is tomorrow, as we were delayed in asking for the judgement to be set aside. We were wrongly advised on the fees involved. So the situation is, will the district judge consider setting aside and as the mortgage company seem to be seeking to not only take possession of some valuable land but also claim an amount of money greater than the amount of the mortgage too.
But there is a CCJ in Portugal right?
No. The judgement was made in Manchester. No court action was taken in Portugal, they simply took possession of the land. The property ws held in an offshore company in Delaware and actually, no charge had ever been registered. We could have feasibly kept the land.
The mortgage was granted by the UK arm of Santander.
Ok - have you applied for Judgment to be set aside yet?
Yes. It was received on Friday but the judge has said to my husband that we ought to attend the hearing anyway and he will make his judgement then. What is he likely to say which will hamper this setting aside?
Have you actually APPLIED to set the Judgment aside in a formal application?
Has the Court listed the Judgment set aside application?
I sent the paperwork in a formal application which the judge has in his possession. I paid £155. It is not listed as he seems to want to speak about it at the hearing tomorrow which will deal with whether Santander can register a charge on our UK property.
So you have not had a notice of hearing of your application to set aside?
No. The application was received ten days ago but had the incorrect fee. I re sent it and it was only received on Friday. My husband called the court today and was told that the application would be considered during the hearing about the possible granting of a charge.
Ok - it may not be considered as the other side may not have notice of it
So if it is going to be considered you have to show:
1) You have a realistic prospect of successfully defending the claim
But not receiving proceedings is not enough. You need to show you have a defence to the claim
2) You also need to show you acted promptly from the time you found out.
Therefore if you have a defence to the claim then it can be set aside and indeed the application may be heard when you next attend Court.
Or it may be adjourned to allow the other side to make representations and the charge adjourned generally
Can I clarify anything for you about this today please?
In the application I told the judge that we were not living at the Portuguese address. Santander made no attempt to deliver the documents to our UK address which they had. In any event, they have possession of valuable land. Is it feasible/legal to take possession of the land and also seek more than the amount borrowed? How can the charge/amount owed be quantified when no attempt has been made to dispose of the land?
Yes they can seek more than the amount borrowed if there are fees and legal charges to add which you are contracted to pay.
There needs to be no attempt to dispose of the land. If you owe the sum then you owe the sum under contract.
If they later sell it those proceeds will be deducted.
That is ridiculous. We may as well have held on to the land and attempted to sell it ourselves. What possible benefit is there in the repossession? Is this what happens when a house is repossessed by a bank normally?. They throw you out, demand the money and maybe try to sell it later?
What is to stop banks stockpiling property when there is nothing in place to force them to sell first? If ever?
If that is the case then you are effectively telling me we have no defence.
The thing is this, its the same as if your house gets repossessed in the UK
The lender will ask for the FULL outstanding balance.
So lets assuming you owe £245,000 - that is what they will ask for
They will get Judgment in that sum
If they later then sell the property, then THOSE sums are deducted from what is owed
They can't double dip
So they can't claim it from you and then claim 100% of the proceeds.
They MUST offset it
But as for the Judgment debt then yes, they can claim the full amount until sold
The process is exactly the same in the UK
Well then, I cannot see it as being able to be defended. Even if the judgement is set aside tomorrow, they will simply claim it again and the charge will be attempted again. is that what you are saying?
You do need to have a valid defence for it to be set aside.
Such as the mortgage was defective, they are in breach of contract or they have not followed any relevant mortgage protocol
And you are saying that this is not valid?
Forgive me, 'this' being what?
They actually didn't follow protocol. It was a turnkey loan but they deposited the full amount immediately.
Did you raise that in your application to set aside?
The money was supposed to be drip fed at certain stages of the build. At the time of the money being deposited, we had not even been granted planning permission.
I didn't raise it because until you mentioned that to me, it wasn't something I had even thought would help.
Ok - then you may have a defence but really you needed to have put this in your application to set aside.
But you need to show you have some defence.
Can I clarify anything else for you?
Will this thread help at all?
For interest the Court rules can be found here:
It may help.
Would I be able to use this thread as something to show the judge?
But it must also be disclosed to the other side
Would the fact that the mortgage was not as it appeared to be a valid defence? What are common breaches of protocol?
I dont know what the Protocol is in Portugal as I am a UK lawyer so couldn't say
But if the mortgage was not as it appeared may be a defence, but if you have had it for say 10 years the Court might say, well you clearly were not bothered if you have only raised this today
Not really. I don't think you are remotely interested.
You have rated BAD SERVICE despite me giving you the legal test as to what is set aside
What else do you want to know?
I did say I dont know anything about the mortgage Protocol in Portugal so I can't help there. Their law is different to UK law.
Besides saying that they can claim full Judgment (which is what they do in the UK), the test to set aside and that you need to show you have a defence - what else is it you want to know or help with?
I have used this service before and I can honestly say that I have never had the impression that someone was disinterested and eager to end the conversation. There was very little constructive input from you and should you have been my barrister/lawyer I would have been very underwhelmed. Also, if you knew nothing about Portuguese law, you ought to have declared that before taking £33.
I see you posted this in English law, you didnt post it in EU law which is why I picked up the question
The question related UK civil procedure rules which I can help you with
However I have looked at the posting history and can't see other questions.
I am happy to continue to help you but when I ask can I clarify anything, I want to make sure that everything I have said is understood and no further help required
If you do need further help I am happy to continue until you have all the information you need.
Perhaps you can tell me what Protocol procedures they have not followed and we can discuss it froim there.
I have. You have it above.
What you need to do now is prepare a full defene.
* defence *
You need to set out everything that you are relying on
So if things have not been done you need to set out what, how and why
Or what has not been done
You need to plead everything in the defence.
You need to serve that on the court and the other side
Once the Court can see what your defence is and points made it is more likely to grant set aside.
However if and only if they served the Court documents at an address to which they KNEW you were not at, could you claim it is what is called an irregular Judgment
But you need to show they KNEW you were not there.
If that is the case then you can ask the Court to set it aside, regardless of whether or not you have a defence.
It would be called an irregular Judgment and the Court can set aside.
Does this help?
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