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Topic starter
16/01/2013 8:48 pm
Ok this is a bit of an odd one but we got a trust deed in 2004, discharged in 2009
Have called rbs to get a redemption figure for our mortgage but they are adamant our 2 current accounts are subject to an all monies charge on the mortgage and say they have no record of them under husbands trust deed
They have confirmed to me that I am not liable, but argue that he is, I have no evidence as it was done, dusted, paid off in 2008 and final discharge papers came in 2009
They have also said that even if we can prove, we still can't settle the mortgage as the current accounts should no have been under the trust deed because of the all monies charge. Now surely they should have told us at the time?
Never had a single letter about these accounts but they have escalated from a joint 3500 to almost 10000
16/01/2013 11:34 pm
Hi Suzib
It's a very interesting scenario as the bank does/did operate an 'all sums clause' on their security documents.
I've never known them to enforce this, so I'm surprised at your post. Given the time elapsed, prescription may apply although they may look on this as a secured loan. Also surprised that they never attempted to recover this from your husband in 9 years. To be honest it makes little sense.
I think you need to find out if the submitted a claim in the trust deed and received any dividend. That would be my starting point.
Mark
Mark is not posting regularly in the Trust-deed.co.uk forum.
17/01/2013 11:46 am
Hi Suzib,
This is a complicated area, but I agree with Mark - to start with try to find out if they made a claim in the trust deed. If they made a claim then they arguably gave up their security over those overdrafts at that point. Also ask them for the written proof of the "all monies clause".
Generally speaking, discharge from a protected trust deed does not affect a secured creditor's right to enforce their security. If there is such a clause then the overdrafts are basically secured and RBS would have the right to seek to enforce their security if the debt has not been repaid in full.
As Mark said, it is really very unusual to hear of such a clause being enforced.
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Topic starter
17/01/2013 8:03 pm
Thanks for the input,the only paperwork i have located is the final discharge paper of hubby's which clearly shows 2 rbs accounts and the payments made to them.
I have spoken to the bank today and the woman was slightly more hopeful and just said when they receive the proof she will send a redemption figure for the mortgage account, no mention of the possibility of enforcing all monies charge
If they decide to be awkward I think I will get a solicitor to act on our behalf as my knowledge is zero
Topic starter
17/01/2013 8:05 pm
Just to add to that they have sent us a mortgage statement every 6 months as it has been running slightly in arrears, although we stuck to our arrangement to the letter since about 2005, they have never sent anything pertaining to these 2 accounts
18/01/2013 8:57 am
Hi Suzib.
If you do get legal advice make sure the solicitor has some knowledge and experience of insolvency.
Many regular solicitors will have no more knowledge of the law on this subject than you do.
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