HELP - Challenging a Mortgage based on Unfair Terms in Consumer Contracts Regulations

KevReedUK

A little extra information I should, perhaps, have added in the original post:

1) The original lending (the approx £17.5k that started all this mess) was already in the form of a mortgage that was moved from a prior lender. There may even have been impropriety there too, but we have no chance of getting any records that will allow us to discover if this is the case, much less challenge it.

2) The solicitor who handled the original divorce has now long since passed on (10 yrs +). Regardless of this, as has been stated numerous times above (thanks to all of you who have said this. Whilst I had already come to this conclusion, having it confirmed is always nice) the solicitor in question was entirely uninvolved in the mortgage (and, in any case, was a Family Law specialist, so would to some extent been winging it had he been alive to be asked about it).

3) For the most part, the Consent Order WAS enforced. The only clauses that weren't were the Messier clause forcing sale of the house (mainly because the conditions for this clause to become enforceable (the children turning 16 or leaving FTE) hasn't yet occurred) and the clause stating that my wife was to pay the Mortgage and the ex was to pay child support. It was mutually agreed (although, unfortunately, due to solicitors on both sides passing and the time since elapsed, no documentary evidence of this remains) that her ex would pay the mortgage instead of child support (partly because it worked out cheaper for him (bearing in mind 3 children, and a comparatively small mortgage), and partly, I now suspect, because it meant that he could keep more financial control).

4) The comment on banks ensuring that legal advice has been obtained may describe the norm, but as stated: in this case, my wife's involvement in the contract was known to the bank to be a mere couple of minutes in their office signing and initialling two pieces of paper with no prior opportunity to inspect them and no suggestion of legal advice from the bank, save a one liner on a page glanced at for a mere few seconds when prompted to initial it.

5) In reply to "whatyadoinsucka"s comment, the bank did not send anything out to my wife, and have admitted such, stating that as my wife was merely a mortgagor (read this as "guarantor" (or "gullible chump"), I guess) rather than borrower (to be read, I guess, as "named account holder" (or "sneaky b@$t@**"))that they were under no obligation to provide such documentation, a position they are steadfastly refusing to move from even after the fact (with the exception of those documents legally required to form part of their claim-pack).

6) Pretty much every solicitor I have spoken to isn't prepared to touch it, partly due to lack of precedent, and partly due to the fact that I have yet to be able to find a good Contract Law specialist who will deal with private individuals, all appear to be either Family, Housing, Conveyancing, Tort or Personal Injury Law specialists. The few who do deal in contract law seem to only be interested in working for companies / corporations, not the "man on the street".

7) In response to "DVardysShadow"s comment, many thanks... I'd been looking into Disclosure and could only find it in connection with criminal law. Now I realise that it has a different name in civil law, I can investigate this further.

8) In response to "Purple Haze"s comment, again, many many thanks... On reading further into this (Barclays Bank v. O'Brien), I also discovered Royal Bank of Scotland v. Etridge which, whilst arrived at subsequent to the Mortgage Deed being signed, is based on a variety of other cases I can now also look into. I assure you, however, that this situation can, and did, get through their procedure (as their procedure was simply to include the one-liner referred to in the original post and to have those involved initial the page that it was included upon. Hardly ensuring that "reasonable steps" had been taken to ensure that legal advice had been sought!). (isn't it a shame that all this didn't happen post Oct 2001 when the law changed and forced legal advice to be sought and certificated prior to a Mortgage Deed becoming enforceable!?!).

9) Last, but by no means least, to the comment from "trollfever". Firstly, if even judges in lower and appeals courts can get decisions wrong, and if cases like the 1974 Lloyds Bank v. Bundy ruling can come about, then why couldn't "the most expensive legal experts that HSBC can employ" also get it wrong. Surely it is this fear of the legal clout of large corporate entities that is so ingrained in our (and pretty much every country's) national psyche that lets such organisations get away for so long with situations like this. Bearing this in mind, surely such corporate entities are aware of such a fear being commonplace among the populace and, even where they do believe that a situation such as my wifes is of dubious legality, they would continue to place others in such a situation on the basis that either "everyone will trust that we've made absolutely sure that we are doing things right and so won't question it" or that "no-one will even think of, let-alone have the guts to, challenge us in court if we do turn down their complaint about it". I hasten to add, neither I, nor my wife, are looking to deliberately cause trouble for the Bank, nor do we intend to profit from the situation. I have made it clear from the start (both to the Bank, and in my original post) that we are challenging the further advances, not the original lending.

My apologies to all for another long post, but I hope this clarifies a few points that I (inadvertently) left out of the original post. I also wish to re-iterate my thanks to all who have taken an interest and replied so far, and to all those who may do so in the future. I also hope that, by bringing this to light, I am also highlighting the existence of this clause, such that others won't inadvertently fall into the same trap (although this is unlikely, in light of the change in the legal landscape that came about as a result of the 2001 decision handed down by the House of Lords).

Thanks again,

Kevin

DVardysShadow

KevReedUK wrote: »

7) In response to "DVardysShadow"s comment, many thanks... I'd been looking into Disclosure and could only find it in connection with criminal law. Now I realise that it has a different name in civil law, I can investigate this further.

Ooops. Sorry - glad you found it. IANAL

KevReedUK

DVardysShadow wrote: »

Ooops. Sorry - glad you found it. IANAL

What I was saying was that I was using the wrong term in my search, without any luck. If it weren't for your mentioning the correct term, I'd have given up on this! (Hence the thanks) :T