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Jamie-Law
Jamie-Law, Solicitor
Category: Law
Satisfied Customers: 13773
Experience:  Solicitor
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Was persuaded by HSBC to move my mortgage to them in 2003.

Customer Question

Was persuaded by HSBC to move my mortgage to them in 2003. Terms agreed via phone and email Interest only over 25 years or my 65 birthday.
HSBC now say the capital is due 7 years early saying the terms were always 15 years. I've attempted to reason with and resolve the issue but they refuse. Misrepresentation Act allows me to rescind the contract for fraudulent misrepresentation. HSBC ignored that and have issued proceedings to take possession. Hearing 15 Oct. Can they do that now I've rescinded the contract?
JA: Where are you? It matters because laws vary by location.
Customer: UK
JA: What steps have you taken so far?
Customer: I've attempted to resolve the issue with the bank but they have refused. I informed them that I'm rescinding the contract under the Misrepresentation Act - Fraudulent (reckless) misrepresentation. I have to file my reply to the court asap.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I have all the emails from the bank which contains the agreed terms. The bank also hold a considerable amount of my companies money (my pension) which was to be used to pay the capital on my 65th birthday. They are refusing access to that account
Submitted: 8 days ago.
Category: Law
Expert:  Jamie-Law replied 8 days ago.

Hello my name is ***** ***** I will help you. I am just reviewing your question. This is an email service so there may be delays when responding.

Expert:  Jamie-Law replied 8 days ago.

If the contract is rescinded doesn't that mean that you have to give them the original loan back?

Customer: replied 8 days ago.
Agreed, but they also have to return all fees and interest I've paid which they refuse to do. They are also holding money in my company account which would cover the outstanding loan and then some. I have no problem moving the mortgage and have plenty of options. But if I do that then it's game over and they will not refund me. They can go to court and try and show the statements were neither fraudulent or negligent but if they can't show that then it's very unlikely the court will award them anything. Instead they have decided to ignore me and issued papers to take my property under the terms of a contract I've rescinded. Hearing is next Tuesday and I need to get a defence to the court. Should I simply outline the fact very briefly and inform the court the contract has been rescinded and as such the bank have no claim under that contract and it's not the courts place to rule on that. Or should I send the court everything I have showing the bank have made misrepresentation.thank you
Expert:  Jamie-Law replied 7 days ago.

Have you filed a defence claiming fraud?

Customer: replied 7 days ago.
I've not filed a defence, waiting for legal advice. I sent the bank a letter months ago informing them that I'd rescinded the contract due to fraudulent misrepresentation under the Misrepresentation Act. They continued to make threats of court action and I warned them that any such action would be frivolous as the contract was void. I attempted to come to an agreement with them for me to pay the capital, which I can do via the company money they hold or moving the mortgage, and for them to returning the interest payments. They declined to negotiate and instead said the'd bleed my bank account dry in legal fees. I have no problem paying you the £44 but need an opinion written not via phone. Time is now very limited.

Thank you
Expert:  Jamie-Law replied 7 days ago.

If your possession hearing is 15th October then you need to file a defence.

You may be late doing it now.

You need to plead your case and set out in concise words exactly WHY it is a fraud and why it is a misrepresentation.

The Judge will then either give directions and set it down for a trial or make a possession thre and then.

But you needed to have filed a defence really a week or so before the hearing.

So you need to do it now.

Can I clarify anything for you about this today, please?

If not, I would appreciate a 5-star rating for my answer, by clicking the button at the top of the screen. I am not paid for my time unless you rate. If you need anything further I am available for a follow up at no extra cost.

Customer: replied 7 days ago.
Thanks, yes defence should have been made two weeks ago but I was away. Papers do say court will consider defence up to the day of the hearing.

1/ If the contract is rescinded then its void. As such how can they ignore that and bring an action on a void contract. Should that form the start of my defence? Should I ask the court to strike out the claim as frivolous?

2/ Do I need to document everything (it would be very extensive) with a full history plus exhibits or outline my case showing brief details?

3/ My wife is part of the proceedings but will not be able to attend. Can my defence cover us both?

4/ Should I seek costs and damages?

Thank you
Expert:  Jamie-Law replied 7 days ago.

1. You can't just say its reconded and thats it, not pay anything. You have signed a deed. You need a Court declaration to void it.

2. Yes

3. Yes

4. Yes, you can do so. But I dont think you can claim more than £50,000 in damages

Does that clarify?

Customer: replied 7 days ago.
1/ I've never said I'm not going to pay anything to the bank and they hold over £500,000 of my company money in an account they will not allow access to. I've also told them I can move the mortgage to another bank and have plenty of offers. But they have no interest in repaying the interest and arrangement fees which would put as both back as we were.

I can rescinded the contract under the Misrepresentation Act without a court order which is what I've done. The bank are not asking the court to rule on that point as they are ignoring it. Surely thats an abuse of the court?
Expert:  Jamie-Law replied 7 days ago.

No, you need to raise it in your defence.

Contractually they are entitled to apply for a possession order.

Do not be confused about what an abuse argument is. File your defence, that is what you need to do now.

Does that clarify?

Customer: replied 7 days ago.
Last point
'Contractually they are entitled to apply for a possession order.' - How can they have any entitlement on a void contract unless they first seek the court to rule on the misrepresentation?

Thank you
Expert:  Jamie-Law replied 7 days ago.

They don’t need to. They have a deed contract. As such your defence is no contract exists. But on the papers it appears there is One

Does that clarify?

 

Customer: replied 7 days ago.
"They have a deed contract" Obviously there was a contract but under the Misrepresentation Act I can rescind the contract (deed) if a fraudulent misrepresentation has been made. That makes the deed (contract) void and as such the offending party has no rights under that deed (contract). The only course of action they have is to start an action to have the court decide there was no fraudulent misrepresentation. They have to prove to the court there was no fraud. So again I don't understand if the deed (contract) is void how can the court allow them to bring an action for possession?
Expert:  Jamie-Law replied 7 days ago.

That is the whole point of going to court. You can try and argue there is no contract, but I am telling you that won’t wash with the Judge.

You need to file a defence setting out clearly your position. Does that clarify?

Expert:  Jamie-Law replied 2 days ago.

If this answers your question could I invite you to rate me 3, 4 or 5 stars before you leave today?

I am only paid for my work on this question if you rate my answer, using the star system at the top of the screen. Please do not forget as it is an important part of the online process! If you need anything further I am available for a follow up at no extra cost. Thank you.