Lenders Breach of Trust

The nature, history and formation of Trusts.

Lenders Breach of Trust

Postby Mog » Tue Sep 06, 2011 11:27 pm

I am planning to challenge my mortgage lender on the grounds that as the trustee they have failed to uphold the terms of our trust agreement and would like some advice and ideas.

As the grantor of the trust I created the mortgage deed which is the substance of the trust and the aim of it was to keep the beneficiary, myself, housed.

The trustee has not only failed in the trusts prime objective but has taken the substance of the trust, my home, for themselves, also it appears that while the beneficiary was housed the trustee was fraudulently taking money from the beneficiary.
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Re: Lenders Breach of Trust

Postby huntingross » Wed Sep 07, 2011 6:46 pm

Your position sounds right, I just wish I knew more about trusts....and as the building society has not surrendered the title deeds as instructed, I am unaware of the terms of the contract / trust.
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Re: Lenders Breach of Trust

Postby Mog » Wed Sep 07, 2011 9:27 pm

I don’t think that the mortgage deed is a trust agreement ? I reckon it’s just the monetary bond used to create the charge against the property and the trust is assumed.

The lender is assumed to be grantor as they provided the capital for the purchase.
By making payments I am acting like a trustee.
The lender receiving these payments is assumed beneficiary.

These positions are never argued so a court will see it as such. The fact that money has no value belies the assumption that the lender brought anything of value to the table and that he is receiving any benefit from the arrangement.
If I can state my position clearly from the outset and give the lender (trustee) the opportunity to put things right it may be interesting to see how they respond.
Assuming I will be ignored does anyone know what the procedure would be to make a claim against the lender for breach of trust
"If you have ten thousand regulations, you destroy all respect for the law. "

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Re: Lenders Breach of Trust

Postby Mog » Wed Sep 14, 2011 6:34 pm

Ok, so far this is a first draft of the letter I plan to send, comments and constructive critisum would be appreciated.

Dear Sirs,
It appears that there has been a grave failing on your part in this matter and the distinct possibility of fraudulent activity on your behalf.

On or around 10th July 2007 I signed the mortgage deed thereby providing you with the financial instrument which was the substance of this trust agreement, at this stage you were the sole trustee for this matter and were entrusted with the simple task of providing adequate housing for my benefit.

On 22nd October 2009, due to an obvious failing on your part, I became homeless which is completely in breach of the trust we arranged in 2007.

It has also come to my attention that additional funds taken during this period were not being passed to the beneficiary and no previously agreed expenses for yourselves were properly requested, I can only assume this was done in error as would otherwise constitute fraud.

I am of the opinion that in this matter you have failed to fulfil your statutory duty of care by neglecting to satisfy the paramount duty of acting in the best interest of the beneficiary.

It only seems fair that you are given the opportunity to remedy the current failings which as trustee you are liable for under the trustee act 2000.
If this matter is not remedied at your earliest convenience it may become necessary for a breach of trust claim to be filed with the chancery division of the High Court of Justice, it may also be in your interest to note the following.

R v CLARK [1998] 2 Cr.App.R.(S.)142 B6-12003 which updated the guidance issued in R v BARRICK [1985] 7 Cr.App.R.(S.)142 B6 - immediate imprisonment is inevitable in breach of trust cases unless there are exceptional circumstances or the amount of money involved is very small.
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Re: Lenders Breach of Trust

Postby the_common_law_reverend_kenny » Wed Sep 14, 2011 8:24 pm

Hello Mog,

From my own perspective ( which includes our family having lost two houses so far) it sounds like you are kind of digging up the wrong tree, if you don't mind me saying so. You would have difficulty in proving what you are saying and further more you may go some way to proving your self incapable in the eyes of the law. Don't forget who we are dealing with here....

~ If you set up the trust (grantor) how can you be the beneficiary sole? that is in itself a dodgy proposition.

~When you set up the trust was it made clear to all parties what was happening?

Those are just little points though which can be overcome with wording. The main point is even if you made a great presentation to the mortgage company ( who would never ever ever concede to your points) It would fall to a Judge to make the final decision and remove the charge on the land. There is no way the judge will set that bar, even if the Judge himself was completely 100% on your side. His hands are tied up so tightly that he may as well be an answer machine.

But note ~ we all know there is a breach of trust, the court knows, the lender knows. So what can a good honest common 'house owner' do when he or she sees that they are getting it good and hard from the rear?

My only solution at this time ( which is no solution really) rent out the house to someone on benefits make the govt pay the mortgage. Lose your own income and claim benefits make the govt pay your rent~ (an agorist approach). Currently it is stale mate. kind of..let the govt eat itself.

(if you have already lost the house or lost possession this is no help I know ~ maybe it helps someone else who is on the edge.)

= they are big and have all the law and they know it, this is not to say there's no hope, because more solutions come to light all the time. We have some great and clever minds all over this.

That's my 10p's worth.
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Re: Lenders Breach of Trust

Postby Mog » Wed Sep 14, 2011 10:46 pm

Hi Kenny,

The house went two years ago and yes you are right about the judges not letting me set a president, I argued about them not providing the mortgage deed and suggested they created the money but judge was having none of it.

Thought i might have a crack at them with the breach of trust idea as i have nothing to lose and i reckon we need all the experience we can get.
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