Nationwide and Evers***ts

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Help need help on this one, though nothing unusual about it, based on other questions. I first got written communication from Eversheds back in October last year, stating that the Nationwide were claiming a shortfall from a repossession to the value of 29,000 of course Eversheds would welcome the opportunity of me to discuss this matter further. I have contact them not admitting the shortfall, but just stalling tactics, saying that my solicitor was dealing with it, They have never asked for my solicitors details, which is good, because I donít have one !! Eversheds are saying that I made a payment of £400 in June 1997. Why I made a payment, Iíll never know..I cant remember ! I left the property in 1994 and last October was the first I have heard from the Nationwide, via Eversheds. Whats the next step ? Thanks Terry.

-- Terry Alan (terry@presentationsforyou.co.uk), May 13, 2003

Answers

Terry, by making any form of payment you have effectively admitted liability of the debt. Options open to you now are:

1)negotitate full settlement, independently or via firm 2)go to court and argue MIG mis-selling (no case law to my knowledge?) and or incorrect/missing information following SARN, underselling of property. Lender cant provide deeds, details of property valuations prior to sale etc..... 3)declare bankrupt 4)They only have 6 years to claim interest on any shortfall debt under the case law below:

"The limitation period for the principal sum/capital is 12 years under s20 of the Limitation Act 1980 and not s8 or any other provision. The limitation period for the interest element of any shortfall is 6 years, governed by s20(5)."

This means they can only sue you for the sale minus the mortgage debt at the time, not any added on interest accrued, which is nice! This helps your settlement position if you take this route, you can argue say 10% of principal as settlement and quote this at em.

5)go to court and agree payment terms which is not recommended as you can get credit blacklisted if you miss these in the future or your circumstances change making it difficult for you to pay.

cant think of anything else at the mo.

good luck

-- Neil (Neilaw_uk@yahoo.co.uk), May 13, 2003.


Terry,

Really we're lacking a certain amount of info to give much advice e.g.,date of first missed mortgage payment, date of repo, date of sale, date of first contact by lender with you, date/s you contacted the lender, the date lender advised you of sale and sale price etc.etc. I would start by reading the Repo site thoroughly, especially the Do's & Don'ts, and previous postings. Follow the advice and put the lender to strict proof. If you have made a part payment you will have acknowledged the alleged shortfall and restarted the limitation period, but I would ask for proof of this. If an MJO has been issued the lender, in theory, can chase you indefinitely. If the lender hasn't contacted you during the 6 years after the date of sale then the CML voluntary code may be applicable, but without knowing more precise info I can't say. Furthermore, if more than 6 years have passed since sale then any counterclaim for MIG mis-representation/underselling will be struck out as being time barred. Although there may be a legal argument for extending the limitation period in certain cases.

On the subject of not supplying docs see this from a solicitor:

While it is technically possible to defend a claim on the basis that the lender has, by refusing to supply statements of account (i.e. prove the debt) or supply necessary documentation, failed to act reasonably in exchanging info and docs in an attempt to avoid unnecessary litigation (Civil Procedure Rules, rule 1 (the '0verriding Objective' + the Preaction Protocol Practice Direction), it is usual that this is dealt with by a cost penalty on the lender rather than dismissing the claim.

Make sure you always state that you deny liability and dispute their claim in any communication with them (put "Without prejudice" on any letters) so as not to acknowledge the alleged debt again. I wouldn't speak to them by phone, get everything in writing.

I wouldn't make any offers until the lender has been put to strict proof, not always easy.

Bankruptcy is an option especially if you have little or no assets, even if you are a home owner it's not an impossibility, you don't necessarily have to lose your home. Discharge will now be quicker.

I would avoid agreeing monthly payments this is usually much more expensive and can drag things on for years. Likewis an attachment of earnings.

I'm no professional adviser so please check all this out with one. Good Luck.

Mark.

-- M Amos (idgroms@hotmail.com), May 13, 2003.


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