Santander refusing to discharge mortgage

DandelionPatrol

Cheeky_Monkey wrote: »

Can Mother prove that her signature was forged?

Surely Santander or a Court wouldn't just take her word for it?

I think the burden of proof of the loan is with Santander. As the loan seems to have been unsecured, the signature would be on an agreement rather than on a deed. So there will be no witness.

Lamma

Thanks again for the input. I generally agree with your approach, although I'm less anxious to start proceedings without jumping through the hoops first. You're right about call centre managers though. I'm beginning to think they deliberately front up aggressive, unqualified staff to provide non-sensical answers in the hope you'll eventually give up in disgust. Their official stance is to insist on dealing with these (legally technical) issues by telephone only, no matter they havent the slightest idea what theyre talking about. My mother has now stopped answering the phone and we deal only by letter with their dispute resolution team. They seem equally clueless, but they must have a lawyer in there somewhere.

Anyway, a few observations: I agree that a forgery, being void from inception, cannot be enforced. I think its still useful to focus on lack of security at this point, though, if only because it tends to underline as a factual issue that the apparent co-mortgagor was ignorant of the existence of the loan - something that becomes harder to argue if she put her signature to a deed. It also puts the bank in the position where they have to litigate if they want to argue the point, as opposed to just enforcing the charge.

Second, the existence of a forgery still leaves the bank with possible equitable remedies, as already discussed. These can be quite tortuous, both factually and legally.

So at this point I'd prefer to work through our options and hope to find someone at the bank that can talk the talk and come to a sensible conclusion. We havent found anyone yet but its possible theres someone there behind the curtain, so to speak. Otherwise I suppose we will have to bring proceedings, probably instructing a barrister via public access.

Finally, I agree on the burden of proof point. I understand that where the evidence is ambiguous (in this case its actually pretty clear), banks prefer not to try to disprove forgeries because it doesnt stack up on a cost/benefit basis. Instead, they will opt to pursue other remedies.

DandelionPatrol

Lamma wrote: »

Thanks again for the input. I generally agree with your approach, although I'm less anxious to start proceedings without jumping through the hoops first. You're right about call centre managers though. I'm beginning to think they deliberately front up aggressive, unqualified staff to provide non-sensical answers in the hope you'll eventually give up in disgust. Their official stance is to insist on dealing with these (legally technical) issues by telephone only, no matter they havent the slightest idea what theyre talking about. My mother has now stopped answering the phone and we deal only by letter with their dispute resolution team. They seem equally clueless, but they must have a lawyer in there somewhere.

Anyway, a few observations: I agree that a forgery, being void from inception, cannot be enforced. I think its still useful to focus on lack of security at this point, though, if only because it tends to underline as a factual issue that the apparent co-mortgagor was ignorant of the existence of the loan - something that becomes harder to argue if she put her signature to a deed. It also puts the bank in the position where they have to litigate if they want to argue the point, as opposed to just enforcing the charge.

Second, the existence of a forgery still leaves the bank with possible equitable remedies, as already discussed. These can be quite tortuous, both factually and legally.

So at this point I'd prefer to work through our options and hope to find someone at the bank that can talk the talk and come to a sensible conclusion. We havent found anyone yet but its possible theres someone there behind the curtain, so to speak. Otherwise I suppose we will have to bring proceedings, probably instructing a barrister via public access.

Finally, I agree on the burden of proof point. I understand that where the evidence is ambiguous (in this case its actually pretty clear), banks prefer not to try to disprove forgeries because it doesnt stack up on a cost/benefit basis. Instead, they will opt to pursue other remedies.

Overall, it seems to me that you are on top of the issues here.

There is a legal maxim, that it is better to be a defendant than a claimant. And it looks like the bank is working on this basis. They think they have a charge, so they will let you run around and leave you to sue them. Ultimately if they felt they had a good case for the money, it would be them doing the suing. But they don't so they aren't. Their strategy might well be to sit it out and wait for your mother to die and then bully her executors into paying - and if you are not up for that, to try and browbeat you into some sort of cash settlement. if I were one of their legal minds, I would certainly be using the call centre to communicate with you to further this strategy.

For the first part, which I think you are already doing, you need to be making your points in correspondence and not accepting calls on the matter. Frankly, it is insulting that it is their call centre which communicates on this and that they do not reply to a letter with a letter. Although if the call centre are talking nonsense, it may be worth writing a letter each time to record their nonsense and ask them to confirm. This will at least get them written into the record. Do make sure that your record shows that they have been made fully aware that the loan agreement is a forgery.

Ultimately, you will probably need to take them to court. I suggest you take your time and decide what your case will be, what evidence is required and what you want to see in the correspondence record, then take them to court.

A more dangerous approach which might yield results could be to get correspondence which clearly states that the charge will not be lifted when the mortgage is paid off and refuse to pay another penny on the mortgage, meanwhile keeping up a dispute in correspondence, undertaking to pay the mortgage in full once they undertake to lift the charge. If the call centre are running things, they may take Mother to court for a repo.

This puts Mother in the position of being defendant and as far as the property is concerned, things are to an extent safe as the mortgage repayments are available and Mother has plenty on record to show that she will pay the mortgage off if the charge will be lifted. It also puts Santander in the position of having to decide whether to take their claim forward as claimant for £65,000 being secured against the property, which puts the burden of proof strongly on them - although it now puts Mother at risk of crystallising a claim for £65,000 and having it go against her. On the upside, this brings the matter out of limbo and to a resolution which should be in her favour. Overall, this is very much an idea and not a recommendation.

Lamma

A more dangerous approach which might yield results could be to get correspondence which clearly states that the charge will not be lifted when the mortgage is paid off and refuse to pay another penny on the mortgage, meanwhile keeping up a dispute in correspondence, undertaking to pay the mortgage in full once they undertake to lift the charge. If the call centre are running things, they may take Mother to court for a repo.

This is in fact the direction we're heading. When we asked for a redemption statement for the mortgage and it came back with (among other things) a refusal to lift the charge until the other loan was paid off, we asked in writing for the legal basis of their position. That was over a month ago and so far they havent answered, apart from continuing to try to harass my mother by phone. I honestly think, though, this is not a considered ploy. Santander appear to be set up to operate on a telephone basis only, and although they have numerous operational centres, none of them talk to each other, so the one arm doesnt know what the other is doing. If you write letters, they tend to disappear into a black hole. This makes it difficult to raise issues of any complexity, even something relatively straightforward such as questioning figures on their statements. Call centre staff cannot deviate beyond their script and there's no-one else to contact apart from the complaints centre, who take months to respond. This leaves us writing the same letter to multiple different destinations in the hope that someone will eventually answer.

In any event, they will have to deal with our redemption statement queries sooner or later and that will eventually give us the opportunity to make an ultimatum. As you say, its a tough call but at the least it will push them towards taking a view on the merits of their case.

silvercar

Would a Freedom of Information request focus their minds, or at least force them to put the paperwork together?

TonyMMM

silvercar wrote: »

Would a Freedom of Information request focus their minds, or at least force them to put the paperwork together?

Freedom of Information requests only apply to government/official bodies, not banks.

A subject access request under the Data Protection Act could be made, but I'm not sure what it would achieve.

TrickyDicky101

Have you contacted your local MP and/or the press? It would seem this might apply pressure that you are currently having difficulty targeting due to the call centre 'buffer'.

Lamma

I'm hoping that once they realise we wont be bullied/ignored they will front up and do business...

Thrugelmir

Lamma wrote: »

I'm hoping that once they realise we wont be bullied/ignored they will front up and do business...

Business as usual for a bank. They have no need to hurry. Nor are they bullying you. Given the sum involved they won't be writing it off either.

Lamma

We shall see