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Ben Jones
Ben Jones, UK Lawyer
Category: Scots Law
Satisfied Customers: 7
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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There have been developments on a matter which we have previously

Customer Question

There have been developments on a matter which we have previously been dealing with your Expert JGM about and have now submitted further issues and points under an unlimited agreement.

Mortgage provider The Mortgage Business have instructed Ascent Legal Scotland to commence proceedings to repossess Flat A9/1 by enforcing a Notice of Calling Up which was issued in November 2013. They had initially obtained a Calling Up Notice for Flat A9/3 but bailiffs refused to enforce as the property was in the wrong position within the complex. Our position remains that the Client purchased Flat A9/1 (not A9/3), viewed that property, obtained a mortgage on that property, whereby the mortgage provider carried out a valuation on that property. We submit that the vendor and their mortgagor and legal reps agreed the sale of Flat A9/1 but passed forward the Title Deeds to Flat A9/3, both of which were originally secured by TMB. We now need to oppose the enforcement of the Notice of Calling Up and would require advice as to:- Which Court to file in? Whether to seek to set-aside the Notice? or to join the Client into the proceedings? If we sign up for a 12 month agreement with yourselves would you be able to guide on these issues

Points to note:-

1. TMB provided the original buyer (David XXXXX XXXXX) with buy-to-let mortgages for 7 properties within the same development. This was in early 2003, prior to completion of the development. Amongst these 7 flats were the 2 flats (of 3) on the 9th floor of a centre block and were given plot numbers 9/6 and 9/8.
2. Once the development was completed, the properties were re-numbered. However, 9/6 became A9/3 and 9/8 became A9/1.
9/6 (A9/3) had the Title Ref: GLA172640. 9/8 (A9/1) had the Title Ref: GLA172627.
3. In February 2005 our Client (Kiran Patel) agreed with D. Thomas to purchase Flat A9/1. He only ever viewed A9/1. His mortgage (with RBS) is for Flat A9/1 and the mortgage valuation was carried out on Flat A9/1.
4. Strefford Tulips of Hamilton acted under a Letter of Agreement between the vendor and buyer for both parties. Having negotiated a contract, completion was arranged for 11/02/2005 and Strefford Tulips forwarded detailed documents to Kiran Patel. Within the documents drawn up by Strefford Tulips were the bullet points:- a) Is the Title No: shown? Answer No: b). Is there a Title plan provided? Answer No:
5. On 11/02/2005 RBS released funding to Strefford Tulips stating that this was to purchase A9/1. TMB released Title Ref: GLA172640 (which is actually for A9/3), but sold A9/1 according to the paperwork.
6. Kiran has paying Tenants in Flat A9/1. Although D Thomas has disappeared, a local letting agent continues to let Flat A9/3 to tenants on his behalf
7. Strefford Tulips stated in an earlier e:mal that they had suggested to Ascent Legal Scotland that the way forward was to enter into a Letter of Agreement or Contract of Excambion to correct the Title irregularities. Ascent Legal concluded that this option was ‘too expensive’.
8. Thereafter, neither firm took any effective steps until Ascent Legal issued a Notice of Calling Up against Flat A/1 in November 2013.
We argue:- It was the responsibility of Ascent Legal and Strefford Tulips (not D Thomas or Kiran Patel) to ensure that GLA172640, shown on the Title Plan as being the westmost property on the 9th floor was the correct property. Flat A9/1 is eastmost. Neither vendor nor purchaser were given the Title refs until after completion and exchange.
So, with TMB now instructing Ascent Legal to enforce the Calling Up Notice, can we file an Application in the Court to have the Notice set-aside? Should we also or instead ask the Court to have Kiran joined into the proceedings as an interested party because the Notice is against D. Thomas? Which Court should the Application be filed in? What is the estimated cost of such action? Can you recommend a suitably qualified firm/individual solicitor for whom this situation would be a suitable challenge?
Should we wait for the Enforcement Notice to arrive or can we file an Application to set-aside before
Ascent Legal file for enforcement and, if so, at which Court?
Can we argue that Kiran bought the correct flat, being the only flat he chose to buy A9/1, but was incorrectly given the wrong Deeds?

Arthur Shuter
ACS Independent Advisory Services
O/B/O Kiran Patel
Submitted: 4 years ago.
Category: Scots Law
Expert:  Nicola-mod replied 4 years ago.

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Customer: replied 4 years ago.

JGM (Scots Law Expert) has already been dealing with this case and advised that she would be able to help with this once we posed the question. Please can you arrange for her to deal with this if at all possible.

Expert:  Nicola-mod replied 4 years ago.

This really should be in Scots Law then: I will transfer it for you.

Thank you,
Expert:  JGM replied 4 years ago.
Thank you for your question.

Your narrative is very confusing. In a nutshell are you saying that your client has had the wrong title number conveyed to him and that this title number is the subject of a calling up notice?
Customer: replied 4 years ago.

In brief. A Mr D P Thomas got BTL mortgages to buy 7 flats at the complex off-plan. These included - Flat A9/1, which should be GLA172640 and was originally plot no 9/8. Next, Flat A9/3 should be GLA12627 and was originally 9/6. In Feb 2005 Thomas sold A9/1 to Kiran Patel. Strefford Tulips acted for both buyer and seller under a letter of agreement. In the contract docs supplied to KP by Strefford Tulips there was no Title No: no copy of the Title or Title Plan (Title was eventually forwarded in October 2012). 9/6 and 9/8 were changed at some point to A9/3 and A9/1 but the Titles were switched. The Mortgage Business Plc financed the original 7 mortgages and clearly believed that they sold A9/1 to KP in 2005. They issued a Calling Up Notice for A9/3 in 2012 after Thomas defaulted and later issued a Notice for A9/1 after realising their error (only because the bailiffs refused to enforce . I argue they sold A9/1 in 2005 and gave up all rights. Kiran Patel owns Title GLA 172640 which should be for A9/1 but is actually A9/3. So he actually purchased and occupies (via hs tenants) A9/1 and owns Title to A9/3. Can we argue that TMB Plc are at fault, ave no right to A9/1 (whatever the Title) and that the Notice of Calling Up (which they are in the process of enforcing) should be extended or set-aside? If so, do we wait for the Enforcement Order or act now? Either way, as the Notice was issued in November 2013 and has expired, which Court will deal with this? Finally, roughly how much would it cost to Apply to Set-Aside, extend, or join KP in as an interested party? The main argument is that GLA172627(which is supposed to be A9/3) says on the Title that it is eastmost, But A9/1 is eastmost. Strefford Tulips and Ascent Legal Scotland (for TMB) repeatedly insist the ONLY real option is for KP to move his tenants out of A9/1 into A9/3. But A9/3 is already tenanted. We ask why it is not simpler for Ascent and Strefford Tulips to arrange to amend the Titles to shw GLA172627 as westmost and GLA172640 as eastmost. have suggested KP can permit TMB to enforce by Consent the Notice for GLA172627, without actually taking possession of a property. That way, the Titles become correct, all Charges remain correct, KP keeps A9/1, TMB become outright owners of A9/3 and get their Flat back (although they will have to evict the tenants in A9/3. Everyone is happy - what's the problem. Ascent/Strefford Tulips will not have it!! Awaiting arrival of the Enforcement Order, assuming this will give an eviction/bailiff date?

Expert:  JGM replied 4 years ago.
Sorry, with the best will in the world, I can't read all of this for the fee offered and in any event you need to instruct a solicitor to deal with this, not just for ad hoc advice. You can't do this on a Q and A basis. Call the Law Society of Scotland for advice on a suitable solicitor.

This will cost several thousand pounds to sort out.
Expert:  Nicola-mod replied 4 years ago.

It seems the professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new professional to assist you with your question, but sometimes finding the right professional can take a little longer than expected.

I wonder whether you're OK with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Customer: replied 4 years ago.

We are happy to wait. However, having heard from JGM that she feels this is a matter which required direct contact with a solicitor, we cancelled the subscription in the belief that Just Answer were unable to help. If this is not the case and an alternative expert is able to assist (provided they are expert in Scottish Property Law) then this would alter things. Please let me know.

Expert:  Nicola-mod replied 4 years ago.

I'm not sure anyone can better JGM's advice for the amount offered but we are happy to keep the question open to see if another Expert can assist.

Please let me know you'd like to proceed,