Is there anybody out there facing a shortfall claim from the WBBS?

If so, WBBS's solicitors are likely to quote two recent county court cases which they say support their view that the limitation period starts from the date of sale of the house.

While this may seem outrageous on the face of it in the light of Bristol & West v Bartlett, I understand that WBBS mortgages are unusual in that they contain no provisions specifying that the BS is entitled to be repaid after xx number of defaults.

Anyone with a WBBS shortfall case with the WBBS should consider asking for the case to be adjourned pending the appeal result.

Guy

-- Guy Skipwith (guy@skipwith107.freeserve.co.uk), February 17, 2004

Answers

WBBS mortgages are more unusual than you might think. Any WBBS mortgage after i think 1984 but before 2001 could be significantly overcharged. Even if you have never been in arrears, but if you were & have been repossessed the overcharge could mean you were never in arrears to start with.

-- Brian Tracey (b.tracey1@ntlworld.com), February 24, 2004.

I am in process of filling in an Allocation Questionaire. Surely under section 20 of limitation act the monies would have accrued, latest, when house sale agreed not when completed. Could you supply details of the cases you refer.

thanks in anticipation

Saul

-- Saul Lyon (ronin_971@fsmail.net), February 24, 2004.

Hi again

The West Brom case under appeal is WBBS v Wilkinson. I understand that it is due to be heard on March 3rd although there are/have been some problems getting legal aid.

Regarding the start of the limitation period, I think that the latest time that it starts is the issue of possession proceedings by the lender. There is a CA case (Southern and District Finance v Barnes [1995] CCLR 62) (which was about time orders) which stated, among other things, that "as a matter of law as well as common sense", when a lender issues possession procedings, it is claiming repayament of the full outstanding balance of the loan.

However, in the WBBS mortgages that I have seen, it states that the whole mortgage is repayable after one month, and that following one month's arrears, the lender is entitled to proceed against the borrower. I cannot remember the precise wording without checking. In any event, we will have to wait for the CA to look at it.

If it can be established that the limitation period started before the sale of the house, Bartlett makes it clear that no new cause of action arises on sale, even if there is a covenant in the mortgage to pay any shortfall.

However, I understand that in the Wilkinson case the WBBS has been unable to produce the original mortgage. It is not clear if they are going to try to rely on a 'typical' mortgage from the same period, although I understand that they have not filed any such document in the appeal papers.

If the WBBS cannot establish from appropriate documentation/evidence when the limitation period began, they are going to find it difficult to show that the debt is not statute barred. Where it has been alleged by a defendant that a debt is statute barred, it shifts the burden of proof to the claimant/lender which then has to prove the contrary.

If the lender cannot do this, it may lose the case. There is case law to support this. In London Congreational Union v Harriss and Harriss [1988] 1 All ER 15, CA, the claimant lost its case because it could not counter the defendant's allegation that time had expired and the debt was statute barred. It could not show when time had started to run and, as a result, it could not show that time had not expired.

This didn't seem to be an issue when the case that came up before the Circuit Judge in the county court, and the Barnes point was not apparently raised either.

We await the CA, which might surprise everyone, as it did in Bartlett

All the best

Guy

-- Guy Skipwith (guy@skipwith107.freeserve.co.uk), February 25, 2004.

It is important for people to realise that all WBBS mortgsges after i think 1984 to 2001 may be gross,ly overcharged. Which means nothing else matters, if you were overcharged & you were not then in arrears you should not have been re-possessesd. If this was proved to be the case it could lead to claims against the lender for loss & damages. It does not matter what cases WBBS hide behind if you have been overcharged (& this can be proved with an audit) they could owe you money. It would be good to turn the tables on them. If anyone req. more info. Email me or call me on 01924227225 (office hours).

-- Brian Tracey (b.tracey1@ntlworld.com), February 27, 2004.

Brian Tracey,

Your comments sound very familar to a chap called Bryan Turner, who I understand coincidentally comes from the same neck of woods as you do.

However, regarding this overcharge belief, The onus would be upon the borrower to prove overcharge and to do this would no doubt require legal action.

An 'audit' would need to be accreditted by a respected financial institution such as a mathematics department at a university to stand up to scrutiny in a court of law and would require expert handling by an experienced barrister (lots of money).

If you loose, (no case as far as i am aware has ever been won against West Bromwich on this issue) you would incur substantial legal fees

Until someone somewhere is prepared to offer no fee on this issue or actually prove me wrong this claim is unfounded.

Sorry to be the bearer of bad news to all West Bromwich borrowers who have heard this RUMOUR!

-- who?? (who@idontwantosay.com), March 19, 2004.