Contracts exchanged - funds not available for completion

inmypocketnottheirs

Just wondered if any one has ever experienced this situation, either as a buyer or a seller.....

I am buying a BTL property. We exchanged contracts a couple of weeks ago, and were under contract to complete yesterday (Wednesday 23.2.06). When my solicitor chased the mortgage lenders for the completion funds, he was told that they had ben trying to contact him since Monday with some queries before they would release the funds.

It now transpires that on Monday they tried to fax him on his telephone number. Clearly the fax would not go through, but instead of phoning my solicitor and asking him for his fax number, the lenders did jack s**t until yesterday, teh day of completion.

The vendors have been agressive since I first put the offer in, and have been hassling at every stage of the transaction. Now that the day of completion has passed, they have served a Notice of Completion on me (costs approx £70) giving me ten days to complete. They are now claiming interest at 4% over base rate.

The questions the lenders are asking are pretty inane. Why they even left it to two days before completion, let alone the day of completion is beyond me.

I am advised by the solicitor that although the lenders are not listening, they have been negligent and I shall be entitled to seek redress for the extent of the claim against me.

I would be interested to hear of anyone who has had a similar experience, either as a buyer or seller. Likewise to hear any opinions regarding this.

Thanks in advance. :beer:

Bossyboots

You will need to establish whether it is the lender at fault or whether your solicitor has slipped up too. It is highly likely that they lender will try to blame them but whoever is at fault, you are entitled to seek redress from them for the costs and interest you are incurring by failing to complete.

In our office, if someone is faxing our 'phone line we do 1471 and fax back the number telling them they have been faxing the 'phone. This saves all sorts of hassles later with missing faxes and if someone tries to blame us later for something, we have the proof that we did all we possibly could to help.

mummytofour

God what a situation.

When we bought this place the funds didnt arrive for completion on the day, that was really bad, worse for the seller,however they did arrive about a week later, we had been due to complet the day b4 good friday!

inmypocketnottheirs

Bossyboots wrote:

You will need to establish whether it is the lender at fault or whether your solicitor has slipped up too. It is highly likely that they lender will try to blame them but whoever is at fault, you are entitled to seek redress from them for the costs and interest you are incurring by failing to complete.

In our office, if someone is faxing our 'phone line we do 1471 and fax back the number telling them they have been faxing the 'phone. This saves all sorts of hassles later with missing faxes and if someone tries to blame us later for something, we have the proof that we did all we possibly could to help.

Thanks bossyboots. In our office cos we have half a dozen lines coming through a switchboard it is not possible to do 1471, and I would guess it is the same at the solicitors. The sol is a good personal friend of mine, and I trust him on this. He has advised me that I have a claim against the lender - but they just don't seem interested. Until they get a summons on their desk that is!!!!

bunking_off

It's a bit difficult because the solicitor's a friend of yours....but my immediate reaction was that it was he who was at fault because it's his job to make sure all the ducks are lined up. In that circumstance the natural thing to do is blame the other party.

When I've moved in the past, the funds have been requested from the bank, and the bank has released the funds to the solicitor in advance (day or two) regardless of there strictly not being any security to the loan for that couple of days. Not sure if this is standard practise or not.

To be fair, I don't know how long things are going to take now, but a penalty of £70 plus interest at base rate + 4% seems pretty reasonable to me....e.g. on a 10 delay/£250k property is approx £6-700? I've never been in this situation but always imagined the sanctions would far more punative than that.

Would have thought to stand much chance of a claim against the lenders you'd need documentary evidence that they said they'd release the funds on the completion day (with no caveats). Good luck, in any case.

Bossyboots

Most solicitors have a separate telephone line for their fax so do not have multiple lines coming through it.

Your solicitor will need to confirm to you in writing why he believes the fault lies with the lenders. You will need that information to claim recompense from them, unless you are going to leave it to your solicitor to attempt to recover the money.

Please keep us posted on this as I would be interested in how it turns out and whether the lender attempts to justify their delay and the reasons they give.

inmypocketnottheirs

Thanks for your comments bunking_off. However as far as he was concerned everything was OK, he chased the completion monies to be told that there were outstanding queries that he had previously been unaware of.

I am of the opinion that no one will put their hand up for this and it will be me who carries the can!

Following my success with regards to refunds from banks because of punitve fees for breach of contract, may be worth finding out if this would fall into the same category. Unlikely to though me thinks!

Bossyboots

The £70 will be the costs of preparation of the Notice to Complete and serving it, so it is not a punitive fee. It is actually payment for the work done. You are also contracted to the interest payment which again, does represent a loss to the vendor as they could be earning interest on that money themselves if you had paid on time.

Therefore, the fees are not punitive and the contract terms not unfair.

I suspect you may find resolution with the lenders by compromising on them paying towards your losses but dependent upon their reasons, you may be able to push for them to pay it all. Unfortunately, what I find is people put documents into their fax machine and leave it to send and just assume it has gone because it will re-dial if it doesn't work the first time. We have one company we deal with at work who do this and then my boss says "well why didn't we get it". Each time I have to explain to him that if we were using the fax either incoming or outgoing and the other company's machine exceeded its number of tries, then we won't receive it. I would argue that there was a duty of care on the part of the lender to make sure the fax had been correctly sent.

sashacat

I have been in this position but from the other side.I was selling a property and the buyer had a problem with funds and did not complete on the agreed date...they also had problems getting the funds released...and we had already put it off twice. Our solicitor issued a notice to complete and the charges were similar although the interest payments were 8% over base. They should have completed on a Thursday and didn't complete until the following Monday. Our Buyer paid up.

silvercar

Absolutely horrendous if your in a chain, think of the knock on effects. Would whoever is at fault be liable for removal firm costs etc?

If your buyer completed with you but your mortgage company didn't release the funds, do you complete on your purchase and move into a hotel in the interrim or do you refuse to give your purchaser vacant possession???

inmypocketnottheirs

Bossyboots wrote:

The £70 will be the costs of preparation of the Notice to Complete and serving it, so it is not a punitive fee. It is actually payment for the work done. You are also contracted to the interest payment which again, does represent a loss to the vendor as they could be earning interest on that money themselves if you had paid on time.

Therefore, the fees are not punitive and the contract terms not unfair.

I suspect you may find resolution with the lenders by compromising on them paying towards your losses but dependent upon their reasons, you may be able to push for them to pay it all. Unfortunately, what I find is people put documents into their fax machine and leave it to send and just assume it has gone because it will re-dial if it doesn't work the first time. We have one company we deal with at work who do this and then my boss says "well why didn't we get it". Each time I have to explain to him that if we were using the fax either incoming or outgoing and the other company's machine exceeded its number of tries, then we won't receive it. I would argue that there was a duty of care on the part of the lender to make sure the fax had been correctly sent.

Again thanks. My comments were very much tongue in cheek! But your remarks regarding duty of care concur with my thoughts, they really should not have left things as they were from Monday until Wednesday (day of completion).

My solicitor was unable to access the number via 1471 as they were dialling his telephone number through their fax machine, so when the call arrives at the switchboard (as a telephone call not via the fax number) it would not be psossible to dial 1471.