10:27 AM, 29th April 2016, About 8 years ago 67

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COURT OF APPEAL UPDATE - West Brom Tracker case
Our legal team from Cotswold Barristers and Michael Ashcroft QC were superb at The Court of Appeal. Three judges sat on the panel to hear our case, two Lords Justices of Appeal and one Lady Justice, the most eminent being the Rt Hon Lord Justice Leveson, President of the Queen’s Bench Division and third most senior Judge in the UK

For those who don’t know, with the backing of over 400 other landlords I took up a legal battle with the West Bromwich Mortgage Company.

The background to the case is that the mortgage lender provided me with a fixed rate mortgage which reverted after an initial fixed rate period to a tracker rate mortgage at bank base rate plus 1.99% to the term end. The loan term was 25 years.

In September 2013, along with thousands of other borrowers who had similar mortgages, I received a letter stating that my mortgage lender was varying my interest rate despite there being no change to the base rate. As if that wasn’t enough to make me furious, their letter carried a veiled threat, stating they had to increase the rate for their own commercial purposes, failing which they would have to consider calling in the loan. Note that my loan wasn’t and has never been in default.

Thankfully, enough other landlords were equally furious and we found each other via Property118. Without their financial support I would not have been able to mount a legal battle of this nature.

The rate rise only affected me to the tune of just over £100 a month but that wasn’t the point. It was about the principle.

Over £500,000 has been raised to fight this case!

We knew the West Brom would play dirty and do all they could to run up legal bills in the hope that we would drop our case. Before this move the Building Society was losing millions every year. This rate rise secured their solvency and returned their failing business back into a profitable position.

Needless to say, they underestimated our resolve.

We should have a verdict in a few weeks time, we are not sure exactly when.

Win or lose, I am incredibly proud that landlords were able to come together to show the world that big financial institutions must not assume that just because they have deeper pockets than their customers they are always in the right. Our group has achieved something that the landlord associations refused to entertain. We fought back!

Even if the Appeal Court Judges were to decide that technically the West Brom contract is how the West Brom lawyers perceive it, this case has shown the world the true colours of this building society. If the lender had made it clear to any of the affected borrowers that their contracts were intended to enable them to vary tracker mortgage margins, or to call in a 25 year loan with just 30 days notice without it being in default, I very much doubt that any borrower, or indeed broker, would have given them their business.

All who attended the Appeal today are as confident as I am that justice will prevail. The prior preparation and planning and the level of detail and the commitment to research undertaken by the team at Cotswold Barristers was admirably extensive and could not have been better presented by Michael Ashcroft

We all felt the three Appeal Judges were able to see through the ludicrous excuses made by the mortgage lender and the unfairness of what they’ve done. It could of course simply be that the judges were “playing to the gallery” but their cutting remarks to the QC representing West Brom seemed very genuine to all in the room.

The Court room was packed!

We live in hope that landlords will continue to come together and fight injustice, whether that comes from mortgage lenders, government policy or elsewhere.

The landlords associations continually fail to represent landlords when it really counts, this case is just one example, there have been far too many others. It is down to all is to fight injustices, of which there are many,  #tenanttax being the hot topic of late.

Please share this message with as many landlords as you know.

If we do win this case, we would like to think it will inspire other landlords to unite, raise funds and fight similar cases where we know we are in the right.

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Mark Alexander - Founder of Property118

12:41 PM, 11th May 2016, About 8 years ago

Mark Smith (Barrister-At-Law) can be contacted via a private message embedded into a form within his member profile - link >>>

Stuart Chell

16:16 PM, 11th May 2016, About 8 years ago

Reply to the comment left by "Mark Alexander" at "11/05/2016 - 12:41":

thank you with the FCA at the moment. Juast gave them all the info I have and its only been a week, want to see what they have to say. I have also sent them a link to this article.

Mark Alexander - Founder of Property118

17:03 PM, 11th May 2016, About 8 years ago

Reply to the comment left by "Stuart Chell" at "11/05/2016 - 16:16":

Having already been through that process I can probably save you 18 months of grief.

First of they will deny they have any responsibility to investigate on the basis that buy-to-let was an unregulated business activity when you took in the mortgage. They will then suggest you start all over gain with a complaint to the FOS who will prevaricate in between asking you for a tin of completeness pointless information. They will prevaricate further and pass you from pillar to post in terms of escalating your complaint through their ludicrous levels of burocratcy until finally they reach a crazy determination which considers savers and the member firm funding them as opposed to the contractual arguments you first raised.

To put it bluntly my friend, you will be pissing into the wind!

David Lawrenson

17:42 PM, 11th May 2016, About 8 years ago

Reply to the comment left by "Mark Alexander" at "11/05/2016 - 17:03":


I'm afraid that Mark is correct, you will be wasting your time. This road was already travelled by the West Brom complainants.

Mark Alexander - Founder of Property118

17:45 PM, 11th May 2016, About 8 years ago

Reply to the comment left by "David Lawrenson" at "11/05/2016 - 17:42":

.... and Bank of Ireland complainants

And Amber Homeloans (Skipton Building Society) complainants

And Manchester Building Society complainants

Anybody care to extend this list?

David Lawrenson

22:44 PM, 11th May 2016, About 8 years ago

Reply to the comment left by "Mark Alexander" at "11/05/2016 - 17:45":

I think that's about all of them, Mark
Over my Pinot G here in Sidcup, I sometimes wonder if they are worried if WB lose.
They should be.. they may be next for the boys from the Cotswolds

Mark Alexander - Founder of Property118

22:52 PM, 11th May 2016, About 8 years ago

Reply to the comment left by "David Lawrenson" at "11/05/2016 - 22:44":

Yes I agree, and once we've got Property118 Landlords Association up and running we should also have the funding to go after them on behalf of our members without them having to get their cheque books out to write eye watering cheques.

Anthony Wilson

18:14 PM, 17th May 2016, About 8 years ago

Good evening all. I note from the Lexis Nexis report that Malcolm Waters QC makes a very important point that Mark Alexander was not a consumer and therefore issues of fairness do not apply to the appeal which was simply based on contract. I have read quite a few of the comments from those who were at the appeal hearing and unfortunately in my experience the incredulity or otherwise of a judge in any hearing listening or questioning evidence is not necessarily an indication that we will achieve the right result.

One aspect that may be worthy of consideration however is . if the appeal court does not find in Mark's favour.. is it worth (and do we have time ... presumably yes because this is an ongoing change) another bite at the cherry on the basis that (as Malcolm Waters pointed out) it was a dangerous assumption to make that the borrowers were not consumers simply because they had three or more buy to let properties. Interestingly this months edition of the practical lawyer talks about implied "good faith " clauses. It states that courts are not likely to imply a duty of good faith into a contract negotiated by experienced parties but there are two specific exceptions... where one is automatically implied.. employment contracts and and contract of a fiduciary nature (in addition to those which are imposed by statute). Food for thought?

Anthony Wilson

18:25 PM, 17th May 2016, About 8 years ago

Furthermore it is a disappointment that the Consumer Rights Act 2015 does not apply to control mortgage lending because S.71 contains an obligation for the court to consider whether a term is fair if it creates a significant imbalance between the parties even if it has never been raised by any of the parties as an issue.

It seems to me that one day there will be a duty of fairness implied into every mortgage contract to protect uninformed property owners against losing their equity unbeknowingly to unscrupulous lenders. I come across victims of this type of behaviour regularly.

Mark Alexander - Founder of Property118

18:36 PM, 17th May 2016, About 8 years ago

Reply to the comment left by "Anthony Wilson" at "17/05/2016 - 18:25":

Hi Anthony

I wish you could have been at the hearing because I couldn't possibly explain anywhere near so eloquently as Michael Ashcroft QC did why fairness must be a basis of consideration for the Judges and why commercial contracts as well as consumer contracts must be fair.

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