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Response to Opinions on where I stand

from Eleanor Scott (eleanor.scott@btinternet.com)
Yes, it is very important not to confuse (and allow the lender to confuse) the title deed with the mortgage deed.

Everyone should be asking for the mortgage deed (& conditions), and not the title deed. Don't let the lender try to throw you off the scent.

If your repossession was over six years ago, and there is no Money Judgement, then the lender's claim is presumably resting on the terms of the mortgage deed, and so it will need to be produced any court proceedings. Therefore you are entitled to see it during the 'negotiation' stage (ie, you say: show me I'm liable and I'll consider a reasonable settlement), according to Civil Procedure Rules. The lender would certainly have to produce it during 'discovery' (ie the period after it issues a writ).

By the way, the six years (if it is a simple not a specialty debt) doesn't necessarily start from the date of sale. It may well start from the repo date, and there are opinions that it starts from the default which leads to the repo. (See one of this site's Newsletters from last summer, which quotes a counsel's (barrister's) opinion.) So you could, according to some apparently informed opinion, be well over the six year limit.

Unfortunately, the application of the six year limit to mortgage shortfall recovery has yet to be tested in the Court of Appeal. (Interesting that the lenders haven't proved their interpretation of the Limitations Act, with all their resources, isn't it?)

Like Lee says, see Repossession for the reasons why this matters.

To be honest, most readers of this site with shortfall problems will get a lot of mileage out of simply asking the lender to justify the price it sold the repossessed property for, and querying the way in which it was valued and marketed.

(posted 8476 days ago)

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