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Thread: Please help - we are losing our home :-(

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    Default Please help - we are losing our home :-(

    Hi,
    We are about to lose our home and I am about to go mad. I have 2 small children, am on my own and I really need some help and some guidance so I can challenge my bank, which is HSBC.

    I had a loan in 2004 from them to buy a house when I left my marriage. They wouldnt give me a mortgage as I had one on my marital home. I had my own business at the time and they did it because of the income in that, but it was always secured in my name not the company's. I dont know what kind of loan it is the 'name' changes with each review, the agreement that came in February is called a 'base rate fixed term loan'. The Bank Manager at the start understood that it was in place of a mortgage and the rate was set at 2% above base. It was written into the agreement that they would replace this loan with a residential mortgage when the marital home was sold which it was in September 2009, but with very little equity left given the housing drop.

    But the bank didnt do this. Instead in October 2009 a new bank manager comes in. He puts the interest rate up overnight without any discussion to 6% above base doubling the monthly payment. Then in September 2010 he demands I pay him £5,000 or he will increase it by 100% again. I ask for details about why he has done this when interest rates are so low, again no answers. He then sends me a reviewed agreement which is very odd and says something along the lines of 'whilst we assume this loan is for buying a house we recognise it can be used for other things.' I am still paying £750 a month which was the pre Sept 2010 figure as I cannot afford the £1400 post Sept 2010 figure.

    They have now called in the loan and it has gone to the recovery dept. They are not very nice people. I asked for a subject access request in December 2010. I got all the electronic files but no paper files despite it being in a structured system and have now been told I cant have it as it is for 'internal use only'. I have sent a complaint to the ICO.

    I want to be able to prove that they should have converted this to a mortgage in Sept 2009 as that is what they promised they would do. Some contracts it is written into, in others it isnt but is was always the underlying premise.

    They have also set me up with a service account so I pay my money into there rather than the loan. It is a business account yet I am not self employed and the company folded in 2005. When the new manager put up the rate he sent it to the marital home (I dont know why, the previous manager sent it all here and had meetings with me here too so it was clear where I was living) and all the account statements. My ex took great delight in presenting it to the court as it was about 5k overdrawn as I didnt know about the interest rate change and hadnt been paying in enough. I cleared it but it now keeps happening so I am getting charged an unagreed overdraft interest on top of the mortgage making the mortgage interest about 28% above base. I'd like to be able to get those charges back.

    I dont understand why they would offer me a loan for 12 years, which he did last September, and not a mortgage as they promised. When I asked he said 'I am not a mortgage broker'. I asked to be put in touch with their mortgage team and nothing happened.

    I have put the house on the market. It is breaking my heart as it was my Mum's house and I bought it back from siblings, so Ive pretty much lived in it on and off all my life. Its been a safe bolt hole for me and the children but I dont know what else to do. I am really worried that they can make me bankrupt instead of go for possession ... I am all over the place.

    Im sorry this is so long but I want to try, I just dont know how. I cannot afford a solicitor, I can barely afford to feed my children right now and we have sold everything to try and keep making some of the repayments each month.

    Id like to know what legislation governs the loan. Is it exempt from the CCA? All was pre feb 11 when they changed things. Could it be seen as a mortgage? and governed by the Mortgage Act?

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    Default Re: Please help - we are losing our home :-(

    When I was in a similarish position I went to a mortgage rescue scheme with a reputable Socail Housing Association. They bought the house off me for 85% of its true value, but we now have a very low rent (a lot lower than the mortgage was), no repair or upkeep bills, and it still feels like 'our house' even though we don't own it. I realise this doesn't answer your question, but it may be worth looking into. Our sale from start to finish took about 3-4 weeks.

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    Default Re: Please help - we are losing our home :-(

    Do you not have any of the original paperwork yourself? i.e the copy of the agreement where it was written in that the loan would be changed to a mortgage?

    Also, they can't just come along and have your house, they would need to go to court etc regarding the loan. If they do issue proceedings, I'm pretty certain that under CPR rules they will have to produce any relevant paperwork when asked for, or be directed by the judge to do so. I'll ask someone to come and have a look who knows more about this than me.
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    Default Re: Please help - we are losing our home :-(

    Hi Wendy,
    Yes I did a Subject Access Request for the paperwork and yes it is written into the agreements, some but not all of them. It was the base premise. They didnt give me everything with the SAR and Ive now had to go to the Information Commission Office to ask them to try and get me the rest. What I want is the notes from all the meetings that I had with the original manager to show the basis for the loan in the first place.
    Ive spoken to the FSA about unfair terms this afternoon and the Financial Ombudsman about a complaint as I keep complaining and they send me nothing. Am going to make to go through the paper work tonight and try and work out time lines, charges that kind of thing. I know when I read it all through the first time there was some memo in there saying 'we must avoid another such and such case'. So will get that out too.
    I was planning on asking for any court hearings to be adjourned and ask the judge to get them to give me the paperwork. Ive not though done anything like this before and I am scared witless.

    Hi Casper,
    Its interesting isnt it? I think I'll give it some thought. I dont know if I could live here if its owned by someone else... do you get any security that way?

    Thank you both for coming back to me, oddly, its good to know I am not the only one!

    Mum ..

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    Default Re: Please help - we are losing our home :-(

    You are bound to be scared, everything is scary when you've never had dealings with this kind of thing. But you seem to be doing okay so far. So if it is written into some of the agreements, then you have a sound basis for challenging the actions of the subsequent manager and therefore everything following that.

    Go through all the paperwork you've got, work on the principle of 3 piles - one for irrelevant, no use at all; one for might be useful; one for definitely useful/relevant. Then use it to build up a strong case for yourself. If you can put forward a good enough complaint to them, then this may be resolved without ever going to court.

    It seems daunting but you are obviously level headed and have common sense and are not completely clueless, as you have shown by what you've accomplished so far.

    If the notes of the meetings exist (which it seems they do as they have told you you can't have them because they are for internal use only,) then you have a right to them. They probably don't want you to see them as it would shoot their case down in flames and prove that the second manager was wrong, and ultimately the onus for this is on HSBC, who don't want to back down and admit that they are wrong.

    Keep going, and take each step one at a time. You will at some point, if you haven't already done so, need to put in writing to the recovery department that this "debt" is the subject of a complaint and is disputed, and that you expect all recovery action to be halted whilst your concerns/complaint is fully investigated.
    Last edited by WendyB; 23rd September 2011 at 21:01:PM.
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    Default Re: Please help - we are losing our home :-(

    Hiya Mum

    Firstly

    you will NEVER be alone in this as long as you are on this site, as there are many many good people here that have been in similar situations, that do a great job in helping with the legalities and also in giving lots and lots of support and hugs, as we ALL need that when we are fighting these legalised theives

    so here's your first hug as I think you could be doing with one

    (((((((((((((((((((((((((((((((((((((((((((HUGS))) )))))))))))))))))))))))))))))))))))))))))))))))))) )))))))))

    As well as the frist class advice you have had already

    I personally think that if you can find the agreement that this is written into

    It was written into the agreement that they would replace this loan with a residential mortgage when the marital home was sold which it was in September 2009,
    then I think this will be one of your biggest tools to fight them as they have BROKE their OWN agreement by NOT doing what they wrote in the contract

    Have you got a copy of that agreement still? ?


    EDIT

    Nearly forgot

    DON't give them the satisfaction of grinding you down, turn the tables and GRIND THEM DOWN

    We all know that you CAN and WILL do this , as we will help you, and make sure you use a HUGE grinder to do it lol
    Best wishes

    Gordon

    Advice & opinions of gorang are offered informally, without prejudice & without liability.
    I am not a solicitor so please seek professional legal advice if you have any doubts as to what I suggest.

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    Default Re: Please help - we are losing our home :-(

    Great advice folks.

    Mumisskint you will get through this, stay strong now, and everything crossed for you x

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    Default Re: Please help - we are losing our home :-(

    Are you up to date with your monthly payments?

    How can they jack up the interest overnight, surely if it is a loan it would have been written in the loan agreement what the interest is?

    I fully agree they have not given you all the information you requested from your SAR and therefore the Data controller is in big trouble imho.
    Please note that any advice given by me is from my own personal experiences and knowledge.

    My site name is after General Tutts who who won a famous battle at Newbury many moons ago 1643 - I hope to win all my battles and will fight to the bitter end.

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    Default Re: Please help - we are losing our home :-(

    Hi:

    I would try not to worry too much at this stage, even a very determined Bank in a straight forward case would take many months to get anywhere near taking possession of a properly defended application.

    The first question would be is this loan actually secured on the property?

    The rights and obligations of parties attached to loans is within the contract and a court will seek to ensure that those terms (providing they are lawful) are upheld.

    You really need the contract(s) going through to make sure the Bank have acted in full accordance with the terms. If terms have changed it needs to be checked that the contract allows such changes to be made and that they are lawful.

    Can you post up the original agreement (with your personal details removed)? and then any subsequent agreements.

    Goran has highlighted one area with potential, if they have broken the contract by not transferring it to a mortgage, they are depriving you of legal rights and protection enjoyed by mortgage contracts, giving you a perfectly good defence should they attempt to gain possession.

    There is a rule of Law called 'the clean hands doctrine' which states that a person bringing a legal action must come to the table with clean hands . . . . their breech of contract (and any other unfair or misleading conduct) means 'dirty hands' so do go through all the paperwork you have with a fine tooth comb.

    Stuart

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    Default Re: Please help - we are losing our home :-(

    Hello everyone, sorry it has taken a little while to come back. I got the box of papers down and didnt have the courage to open it on Friday, Saturday it made me cry, but fortified by all of your lovely comments (and hugs - thankyou!) and not wanting to be the idiot who lets her boys down, I have gone through it tonight.

    A little more background might be useful.

    Back in 2002 I had my first child. I was married, successful company etc, own home. 6 weeks after baby was born my then husband became really violent. We tried to work it out for 2 years but he seemed unable to calm down. So I went to the bank and asked for a loan to buy my Mums house as she died that year and I was left with a 3rd. I told all of the sorry story to the bank manager who on the strength of my business agreed the loan. I was in no state really to be making any financial decisions but I just wanted to be safe with my children. The deal as I understood it was that I would take the loan, move into the house, start divorce proceedings, sell the marital home, use the equity to pay off some of the loan and the rest would go onto a residential mortgage. My X decides that's too civilised and stays in the house until 2008 refusing and obstructing sales. He remains threatenning and manipulative and I admit it took me a long time to find the confidence to stand up to him. I did finally in 2008 and went to court and got an order for sale. We lost £50k on the property with the housing drop so the equity was small. My company folded in 2006 (I was a wreck!) but the loan is in my name not the company's so it stayed on.

    Here is the initial agreement from 2004. The first one. From the paperwork it has been reviewed 6 times between 2005 and now. The fees for these reviews amount in total to £6k. I have now been offered a very dodgy looking loan over a 12 year period that is just 100% increase again so from £750 a month to £1300 per month but no justification as to why 12 years and not 25 etc.

    (Removed as I have uploaded them now below :-) )
    (this is the link to the docs ... am not sure how to upload to here ...)

    Within the paper work there are three points:
    a) I am (unbeknown to me) a 'sole trader' whose business is 'buy to letting'. I am 'incorporated in GB and trading in GB'. Yet the loan was 'not suitable for a buy to let 'so it is termed 'personal'. It doesnt seem to be covered by any legislation but I think looking at the mortgage deed - it has an 'all monies charge' in it as they can recover absolutely everything etc.
    b) I didnt pay any payments between May 2006 and December 2007. No recovery action was taken, never heard a word from them. They did though round it up into the loan. I was asked if I agreed with it. (lots of the review agreements are unsigned and I did ask for a breakdown of what was going on. At the same time they upped the interest rate, which for me is bizarre as it was unaffordable clearly. I was though being charged interest at £25 per day.
    c) I ran up a 12k overdraft on my current account with them. This closed in 2006. I do not know how it got to 12k. I am sure there must have been more payments to this loan in there - how can they just keep taking money as an overdraft? The 12k is now secured as a charge on the house ... again I didnt know this had happened. They did go through a spell of sending post to my marital home as they thought I was some property magnate not a battered wife.
    d) They insisted that I open another account with them (despite the 12k OD on the other one!) and told me they would repossess if I didnt follow their action plan. It transpires it is a business account. There are lots of letters that say 'we have approved your request for an overdraft' only I never made such a request. I have sold my entire life off to repay these charges and I am sure they should have taken recovery action not just let it keep going up so the loan was continually serviced.
    e) the term about residential mortgage conversion is not in the agreement. However there are various letters from the various managers acknowledged in house by internal memo and to me that the plan was to pay off some and convert the rest to a capital repayment mortgage or 'standard mortgage product'. I feel it has always been implied if never expressed.
    f) I cant afford it £1300 a month. I havent signed the latest diatribe contract that has come through as I dont agree with it. I am making minimum payments as I know I cant afford it and with a housing list with 6000 people on it we will need to rent somewhere and for that we need a deposit etc. So I pay in £350 a month. They have offered me this other loan in december 2010. All the way through this they have over ridden adverse credit reports from the 'system' who rejected me. I think they should give me back the charges, admit what they have done is wrong and give me a residential mortgage. If I am good for their 12 year loan, why cant I be good for the residential mortgage they promised.
    g) The subject access request is missing lots of information particularly from the last 12months including review agreements, emails, letters etc.

    Sorry, thats a bit of a rant! If someone could let me know how to upload I will let you see the agreement. The reviews are much the same just with changes in interest rate and review periods.

    Once again, thank you for all of your help. Just having an outlet for this makes it feel all the less scary.

    Mum
    Last edited by mumisskint; 26th September 2011 at 13:16:PM. Reason: add documents

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    Default Re: Please help - we are losing our home :-(

    Hiya

    Thank you for sharing this with us and yes the info you provided will be very useful.

    As said in my above post, you will get the right advice on your issues, and you will get through this.

    So sorry to read what you have been through though, you will get stronger from all of this and you are dealing with it, that is good.

    Our folks will be along in due course to advise further on this matter.

    Meanwhile, I wish you all the best, and keeping everything crossed for you.

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    Default Re: Please help - we are losing our home :-(

    Oh and yes the loan is secured on the property and I was up to date with the payments until March 2011. Then I got made redundant and have been paying in £300 ish a month, plus more when I find things I can sell.

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    Default Re: Please help - we are losing our home :-(

    Hi Mumisskint,

    really sorry to hear what you're going through

    another ((((((((big hug))))))) here

    There may be rights undder TOLATA re the property being the children's home - what ages are they ?

    I will post later or early tomorrow but am at a job interview (long train journey too, Scotland to London).

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    Default Re: Please help - we are losing our home :-(

    Hey there,
    Thank you for another hug - they really are fortifying!

    The little people are 8 and 2 - what tho does TOLATA stand for?

    Ok ... have just googled it - I am the only person in the house paying the mortgage and the only person named on the deeds, this is the house I bought when I left my husband, not the marital home.

    Am currently reading up on unfair contract terms act / unfair terms consumer contract regulations / some OFT stuff relating to that / the bank code / the lending code ... I want to be able to say you did this this this and this .... but its quite hard really isnt it?!

    Mum
    Last edited by mumisskint; 26th September 2011 at 12:21:PM.

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    Default Re: Please help - we are losing our home :-(

    Mum

    I have noticed that your Refference numbers are still on docs in your photobucket

    Is there any way you can remove them for your own security as we never know who is looking in or what their intentions are

    mabe remove the docs amend them re submit

    to upload direct onto your posts here with jpegs

    When you reply
    (I think this works with edit also to remove/resubmit attachments)

    click go advanced
    scrol down to advance options
    click manage attachments
    click browse
    select the jpeg you want
    click open
    click upload
    click close window
    Best wishes

    Gordon

    Advice & opinions of gorang are offered informally, without prejudice & without liability.
    I am not a solicitor so please seek professional legal advice if you have any doubts as to what I suggest.

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    Default Re: Please help - we are losing our home :-(

    These are the first 5 pages suitably redacted. Thanks for you help
    Attached Thumbnails Attached Thumbnails SCAN0001.jpg   SCAN0002.jpg   SCAN0003.jpg   SCAN0004.jpg   SCAN0005.jpg  


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    Default Re: Please help - we are losing our home :-(

    The last 3 pages :-)
    Attached Thumbnails Attached Thumbnails SCAN0006.jpg   SCAN0007.jpg   SCAN0008.jpg  

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    Default Re: Please help - we are losing our home :-(

    Quote Originally Posted by mumisskint View Post
    Hi Casper,
    Its interesting isnt it? I think I'll give it some thought. I dont know if I could live here if its owned by someone else... do you get any security that way?

    Thank you both for coming back to me, oddly, its good to know I am not the only one!

    Mum ..
    I am so very sorry I've only just picked up this question. Yes, we have security for the rest of our lives here and it's written into the tenancy agreement that we are allowed to pass the house down one generation, so our daughter is safe should she still want to live here. Presumably she would then sign a tenancy agreement with the same issue, so it would self perpetuate.

    Certainly to us it still feels like it is our house.

    Also, the Housing Association is extremely discrete in our case as it was mortgage resue and never send signwritten vans linking us to them if there's work being done, and the workmen always tell neighbours etc... it's our own house.

    At the time this was a very big issue for us, though it is much less so now.

    If you do consider this route though be very careful that it is a proper, reputable social housing association as there are a lot of cowboys out there who let you live there for a year and then turf you out to make a nice profit. Your council is likely to be able to recommend someone.

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    Default Re: Please help - we are losing our home :-(

    Have you asked them to convert the secured loan into a residential mortgage as they had said they would ?

    Presumably if they had done this when they had said they would, ie after the former marital home was sold, it would have saved you a lot of interest, and getting this back would improve your position financially at the moment.

    If it is a contractual term of any agreement that they would convert the loan in this way, you can sue them for breach of contract if further negotiations fail.

    You could in the meantime, after setting this matter out, suggest referring the matter to mediation or arbitration to try and find a solution for everyone.

    TOLATA = Trusts of Land and Associated Trusts Act. One of its provisions is that in making any Order about the disposal of the land involved, the Court has to have regard to the welfare of any minors whose home the property is.

    Presumably your kids welfare would be improved by staying in their house ?

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    Default Re: Please help - we are losing our home :-(

    The 'buy to letting' would seem to me a misrepresentation, probably an actionable one. It may also be an attempt to evade provisions protecting consumers but not businesses. This might make the loan agreement unenforceable.

    The loan may also have been mis-sold, as quite likely the 'business' overdraft was too.

    You may want to involve the FOS; you could suggest that you continue the payments you have been making (if you can) and that they freeze any further action pending resolution of a complaint to the FOS.

    For more detailed and more expert advice, you could use the Bankruptcy Association's scheme to get a detailed legal opinion for a nominal fee. You do not need to be bankrupt or likley to go through the bankruptcy route to join them, they cna help with any serious finanical difficulties. I often recommend this option where the family home is at risk due to arrears on secured lending.

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    Default Re: Please help - we are losing our home :-(

    Wow that's amazing thank you!!! My head is starting to feel a little overwhelmed with all the reading I am trying to do to get a grip on this so having it pinned down a little is really good.

    It seems to me that I ended up in the branch one day a bit battered, in tears and demanding to see the bank manager who took care of my business (it was a company ltd by guarantee which I put into administration in 2006 and the loan didnt go down with it, I'm an epidemeologist so definitely no property letting in the job description...) and she gave me the loan. It was never really discussed what it was and I think looking back through the paper work they over the last 7 years have struggled to quantify it. I feel with every change in the law, they have added on a disclaimer of one kind or another like its exempt from the CCA as suddenly it is a business loan. They have never specified that it is interest only and not capital as well etc.The interest rate rises seem a clear nod not to assist but to get us out. If they had have converted it then I would be paying the right amount instead I am paying 100% more and have been for two years or so. Does unfair relationships come into it as well or is that just CCA reg agreements?

    I asked if they could convert it. My ex husband was very adept at stopping sales from going through. The first bank manager understood where we were, hence the interest rate reflecting mortgage lending, and when we thought there would be a sale he organised a mortgage quote etc. The new manager when I asked him flatly refused and said he was not a mortgage broker. As a result when I havent been working i havent been able to claim mortgage interest help on JSA as its not a mortgage.

    Right now I am waiting for the missing bits of the SAR to come through but they have sent me a letter saying they want to know my repayment proposals within 14 days. Im going to send them a letter saying that I am disputing the amount they say I owe and a formal complaint will be filed with them and the FSA / FO when I have received the additional SAR paperwork, and I'll add the part about stopping action whilst dealt with - do you think that will be ok?

    I am really worried that in 14 days I will have no where to live and feel I should be boxing stuff up now.


    Thank you Thank you Thank you....

    Mum

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    Default Re: Please help - we are losing our home :-(

    You cannot be evicted without a court order.

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    Default Re: Please help - we are losing our home :-(

    Write saying you will contact them with further proposals once you have received all the information form the SAR and had the opportunity to take any necessary independent advice.

    I would dispute the debt on any possible pretext you can as it will reduce the likelihood of being made bankrupt.

    If all else fails, the type of mortgage rescue scheme Caspar posted about may enable you to keep your home. You may wnat to start looking inot whether this is available in your area.

    However, I think it is worth first looking carefully at enforceability of the loan and whether you might be due any refund due to mis-selling or unfair charges etc.

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    Default Re: Please help - we are losing our home :-(

    Ummmm - why would they make me bankrupt??? There is equity in the house. The loan is for £139 the house is worth £165 ..... would they go for bankruptcy not a repossession?

    I have to rent if we get moved out. There are no HA's buying here, I checked today with the Local Authority. I wont be able to rent if I have been made bankrupt, I wont get through a credit check.

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    Default Re: Please help - we are losing our home :-(

    If you have to rent and have a poor credit rating, you can get a tenancy quite often if you are able to pay 6 months' rent in full in advance, or if you are able to provide a guarantor.

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