Question on data rights and loans

[Hiddentruth]

All lawyers out there, can you help?

Where a loan might be wanted to be taken out by one party for their divorce fees and that loan is going to be secured on jointly owned assets can you help explain with respect to the other joint owner or indeed owners of those assets, how their data gets handled in such a scenario?

Can you explain the rights of these other owners to be credit checked within any application, to comment, object or anything else. Or even to know about it?

Normally any loan has a cooling off period. How would that work too in respect of the non applicant but somebody who is affected by it?

It would be good to get some views on this. I know GDPR changes make us all more aware but we had DPA 1998 for a long time...what would be the situation with 1998 as opposed to the 2018 DPA do you think?

All comments would be welcomed...

Greenberet - I've been trying to help by explaining that your expectation of what the judge would consider relevant is misguided. I don't think it's me that's refusing to accept that grass is green.

Hi everyone. I would like to remind everyone that it is actually very helpful to know when reading these posts the position the advice is coming from. Occasionally a new poster comes on here and clearly states they have no legal qualifications but have found this a fascinating thread and then make a point which shows some insight in law. For me that is quite confusing ...

It is clear that @Xenia is a lawyer but in a commercial and civil arena I believe..,correct me if I am wrong...and has personal experience of divorce but managed to avoid slogging it out in the courts over money.

@zsazsajuju seems to be a lawyer..solicitor...paralegal...?????

@MrsWobble3 speaks with authority but says 'she' is not legally trained at all

@Collaborate seems to be a lawyer of unknown details?

@Jack65 seems to be in the law too

Would you all be kind enough to give a brief resume of your position as it will help know how to take advice and comments

@hiddentruth is a member of the public with an interest in the administration of Justice, of process and procedure and potential for harm and impact resulting from wrongful deviation within those. Also interested in rights, data rights, human rights from the perspective of a divorcing person using the established court process through all stages...first appointment, FDR and final , set aside hearing and subsequent directions hearings but not as yet appeal. Knowledge gained by extensive reading and observation, investigation and experience. This has revealed evidence of a significant material non disclosure impacting financial proceedings. @ hiddentruth has employed solicitors who have given advice, taken her case then announced they do not fully represent her. So she has been both represented and unrepresented in confusing actions by several firms as each behaved oddly she sought to find one who could handle the case. It seems the big secret being the material non disclosure of a litigation loan was likely known to all her solicitors. Nobody told her. Multiple thousands borrowed from family spent on pointless defence on false pretences. She believes many questions need answering, not least...how can this happen?

Hope this summary helps people see OP position. It will assist to know legal commentators too if they are willing to share...

@Hiddentruth That's a bit of a pointless request. Note the MN disclaimer at the top of each page Mumsnet has not checked the qualifications of anyone posting here. If you have any legal concerns we suggest you consult a solicitor.

I could literally post anything about my qualifications and no one would be any the wiser. There are some posters on this site who know who I am, but not many.

A quick idea of what area of law would help ....? If any?

@MrsWobble3 when your help is based on incorrect facts it is irrelevant to me

When you continue to presume you’re recollection of information is correct rather than check it it becomes frustrating

WHEN you have paid extortionate fees and find yourself in this situation and the whole basis of your case and help is flawed but by this time have lost your family home and are then ditched rather tHan the professional fess up maybe you might understand my depth of feeling.

Even more so when everything is in black and white and you can refer someone back to the point of error

Greenberet. When every professional you encounter fails to be helpful to you or able to understand your case - at what point might you consider that the problem might just be you? I'll stop irritating you by trying anymore.

I have been practicing family law for over 25 years as a qualified solicitor.

@Hiddentruth I've read this whole thread with interest and you have had a lot of advice from PP's about your questions. I don't want to go into the data issues etc but you appear to be labouring under the misapprehension that whoever did the Conveyancing in relation to the sale of the FMH colluded with the Estate Agents for the sale of the property at and undervalue and were somehow wrong in repaying the litigation loan.

Firstly, any monies received on the sale of a property are funds held in a Clients Account which means they belong to the client this is not a pot we can dip into whenever we feel like it and all Clients' Accounts are audited annually. Receiving monies from a lender and discharging them to a client is not acting as a bank, it is the only way that property transactions can work. We routinely give undertakings in relation to such monies but under no circumstances would we undertake to do something that was outside of our power so accepting monies on the grounds that Our firm may be instructed to deal with the sale of a property at some point in the future would be absolutely ridiculous as I would be putting the firm at risk of a breach of undertaking for no possible gain.

Secondly, whenever I have dealt with any sale of a property of a divorced couple I am either jointly instructed or may be appointed by the Court to act in the sale and will adhere to the letter of the court order in relation to the payment of debts and liabilities and the subsequent split of assets following the sale. Where I am jointly instructed I prepare a detailed Statement of Account which sets out the sale price plus any other funds received and all of the liabilities discharged and outgoings (ie Estate Agents fees, legal fees, VAT etc) and exactly how much is to be paid to each party in accordance with the Consent Order or their joint instructions. This is supplied to both parties for approval. If there was any dispute I would insist upon the Statement of Account being agreed by their family law solicitors as being in accordance with the Court Order/Consent Order and in the absence of such agreement I would insist that I had the Court sign off on the distribution/payment of liabilities or whatever was now in dispute.

As @Xenia has said the vast majority of the legal profession work extremely hard in their Clients best interests and genuinely do their utmost to bring matters to as speedy a conclusion as possible and aren't just running up the bills. It is extremely difficult sometimes to do this as a Client can ask what they think is a simple question and it isn't a simple matter to supply the answer whether that be the necessity to undertake hours of legal research or sometimes it is actually better to obtain Counsels Opinion as an expert in that particular field of law. Clients often balk at these costs but want the answers regardless.

A pp up thread said that it was our duty to act in the interest of good justice (or words to that effect) but that relies upon your clients being willing to accept your considered opinion and advice often when they don't want to hear what you have to say. I have had Clients remove their instructions and transfer to another firm as they didn't like what I was advising them. You can't force someone to remain your Client.

Hi @redastherose

Thanks @Collaborate for confirming

Re @redastherose thank you for your input there which is indeed helpful. If I start by saying there is no proof I am labouring under any misapprehension.

I am labouring some curious facts that can be evidenced.

You quite correctly point out what I would anticipate in a normal process. I don't think mine was normal because of the interfering characteristics of a litigation loan.

@Collaborate seems to have operated Novitas loans. So far has been unwilling to comment on how she ensures the other side.,,ie other joint owner gets to know given that Novitas task the loan holder and/or solicitor with that and do not ensure it themselves.

So if the case runs through to a sale of property, which is a likely outcome and the basis on which the loan company has an interest, if a fairy godmother fails to deliver cash to settle the loan during the case...then by hook or by crook the property on which the loan is secured will be sold and that has to be actioned by the operative solicitor acting for the loan holder because they have promised to pay off the loan by assigning proceeds of sale to the loan company.

So then we have a different sort of conveyance going on. It is not necessarily jointly instructed because there is a conflict of interest to be resolved or accommodated because the conveyancing solicitor is not impartial..they act for the other side and for the investors and loan platforms providing funding to their client to pay the bill of said solicitor.

So in this case the conveyancing solicitor is not impartial. Nor are they jointly instructed. Nor have they got any conveyancing contract signed with all legal owners despite them being in their right mind and perfectly able to instruct and agree or otherwise to conveyancing terms.

So said solicitor is acting on behalf of all legal owners yet without contract, with conflict of interest and yet they owe a duty of care to all on whose behalf they are doing this deal.

You are correct.,,the court order lists who is to be repaid. It says this conveyancing solicitor's own client is to pass another property (not the one being sold) to me but they fail to ensure that is done.

So I ask the judge who ordered that another judge sign in my place using the senior courts act 1981 ...why did it (court) not do the conveyancing itself...the judge replied it (court) does not do that..

I just do not get how this is a legally sound transaction when the property being conveyed was not all owned by the side conveying it. Nor did the court order ensure the conveyancing solicitor did all the conveyancing to ensure the formula in the final sealed order was fulfilled.

It was a partial incomplete deal done...it was not an order by consent.

All the stages you describe are muddied by the dynamics of who was actually selling this property. It wasn't the court. It was not a repossession. It was done without any application into court in paid form. I was not selling it. There is a document I never got saying the proceeds of sale woukd go into the solicitor client account for the solicitor who did the conveyancing.

So who was selling the property? Who had authority to do so? The solicitor had presumably been drip fed their bills as the case went on so infact their bills had been paid. They were obliged to pay off the loan as they had assigned to do so. So @Collaborate can you explain the mechanics here...it could be your client account handling funds belonging not only to your client but to the other joint owner too...yet you are not their solicitor nor are contracted to them.

How is this justified or possible? You then follow the court order and repay the various things noted to be repaid by the judge. Where is the litigation loan in all this? How is it expressed on the court orders you obtain in these cases?

Whilst I have been reasonable open about what work I do (business law) it not necessarily wise for everyone to be in case they are then identified particularly as people get very upset about their divorces which can be some of the worst most painful bits of their lives so I think people should be free not to say who and what they are if they don't want to . Most of us want to post anonymously.

because I have not spent very long reading all the posts I am not sure what the Hiddent main issue is. The spouse had a litigation loan and when the marital home was sold the solicitor made sure those owed money were paid off presumably in accordance with what the court ordered - either that the loans came off the joint pot or one person's share depending on what the judge had ordered. Is that really a problem? (I hold no clients' money so never have to get involved in that kind of thing)

So. Did you own a house. Soley? That your x secured a loan on? Then you had to sell YOUR house to repay it?

Or was it a jointly owned property?

2 properties both jointly legally owned. Property A was the property to be sold from which all the order flowed to end up giving me Property B in full without debts and ex got an equivalent value sum of cash.

Proceeds of Property A provided that sum in cash to ex and a sum to me in cash so not all of proceeds of A was for ex as it also provided sums to repay mortgage companies etc and conveyancing solicitor who was not acting for me (!) And estate agent not acting for me either...no contract just like solicitor.

It appears transaction may have been carried out as a transfer of equity when it was infact a sale. Property A being the bigger money spinner.

No sign of any lit loan anywhere yet it existed. Believe it may have been held on all joint assets not just Property A. People don't want to tell me if this is the case...so the loan and encumbrances may be lurking behind property B even now.

Am I correct in thinking an equitable charge can only fall away where a sale for value without notice occurs?

Nothing shows on either Property A or B title deeds. If the loan is unpaid from A and still running there will be no asset left in property B by now.

The court has not ensured I am given my property. I am being asked to claim it full title. This is not what the court order says.

Which property did you not get? -Your share of the proceeds of property A or you didn't get a transfer of property B from joint names to your name?

I got a sum of cash which I do not believe was the correct sum due to me as the percentages ordered by the judge at Final hearing were taken out of the sealed order!!! Not approved by my side as you can imagine as without them in I may get less than 50%. I was kicked off the selling process due, we now know , to these hidden loan terms.
This cash sum was deposited in my bank account from the client acct for the solicitor of my ex being the solicitor named in the litigation loan documents.

There was an delay getting that sum to me. I was not told, even by my then solicitor that the sale had been carried out. I believe the property was sold twice. in which case if it is undersold then resold there is no need to account for the difference in price.

In addition to this fiasco property B was not passed as per the court order. I already own half of it. The other share is ordered to be passed to me. Anyone reading the final order would think the conveyancing solicitor would do all necessary conveyancing but no, once they sold property A and bought their client another house before my settlement was even partially made (the cash part) they hung up their boots!

I was told I had to pay for my own conveyancing of property B and take the full title which I believe is because nobody had the right to sell or handle all the funds of Property A.

To further complicate, part of property A has not been accounted for on value and terms in the conveyancing contract suggest dealings to advantage only my ex despite joint ownership.

So who legally sold Property A? Who had the right to sell it? Or has my ex sold it to his solicitor first who has onward sold it ?

Loans remain hidden and advantages built into the transactions?

Or rather than a sale to the solicitor to the person funding the hidden litigation loan....nicely lined up. The marketing of the property was professionally misleading.

Yep the marketing and conveyance has a reet bad smell!

It sounds quite complicated. So you had one property correctly transferred into your name but the other (marital home the more expensive property A) that had to be sold you were not given the correct sum as your share?

On property B only what happened though is exactly what happened to me and I had to pay all those costs. I don't think it's that unusual. wqe had one property marital home. My ex got about 60% of joint assets. He got the cash after a remortgage and then my solicitors at my expense then did the conveyancing acting for me and the lender to put that into effect to ensure the property was then moved into my sole name. So unless I would have thought the judge ordered that the conveyancing costs were paid by one particular party it is not ncessarily wrong or some massive travesty that you had to pay those on property B. It sounds like you think the order says otherwise - that the other spouse will pay the costs of transferring that property into your name only. If it just says the property will be transferred into your name I think you might have to pay the costs of that which is probably why people try to get the court to deal with the detail of that. I suspect it was not very expensive to get the lender's approval if there were a loan on it and do a transfer and notify the land registry. I am not sure what capital gains tax there is if there are gains when you transfer from joint names to one name.

Not considered property A above as need to start some work.

Hi @Xenia

Many thanks for reply. Actually property A was simply sold according to the final order. It had various parts to it on a single title deed. These were not marketed openly and clearly , elements of worth disguised. But it was sold nonetheless under these curious circumstances as I had been made totally impotent by the non consent orders. The litigation was a fiasco because the other side set about negotiating orders but kept changing them (now we know why, because there were hidden investors driving the case) and all final sealed orders were different to those versions last consulted on.

So property A was sold...allegedly! Whether all of it was sold in reality is unknown. From those proceeds a series of debts paid off. That left a pot from which ex got a large lump in cash, I got the residue in cash which was going to be whatever was left depending how much was paid for A. I was to get Property B but only after everything else was done and because I was made impotent by the orders and the orders said ex had to transfer his half of B to me, I believed I had to do nothing.

What @redastherose says about getting to see statements for checking beforehand etc simply did not happen despite asking. I was by this point a wholly disempowered legal owner. Extraordinary.

So where was this now discovered litigation loan hiding in all this?

The selling contract see was an altered 5th edition and so was commercial. In it was reference to an unspecified sum which might be paid later or in addition. Really weird wording.

I can only think the sum stated to have been paid on the again odd completion statement (no identifying author, just an unpleasant covering letter with a plain monetary breakdown sheet attached so if detached from the letter it was devoid of identity) was the sum left after the litigation loan was taken off the top before division.

If so I too have paid that loan. If not the loan exists still on property B. I believe both A and B were secured by charges to the loan company because my ex wanted both properties sold which made no sense when B was a suitable value home for one of us.

My question to the lawyers doing conveyancing is how are these loans advised to joint owners in the calcultaions part of drawing up orders and how are they dealt with in the conveyancing because those of tpyiu operating Novitas loans for example will be the conveyancing solicitor no doubt.

What I describe will have had to be factored in many times over. ..my case is not the only litigation loan out there!

The silence suggests this is every bit as bad as I think it is...

No. It means that you’ve exhausted any of the professionals who could help here by:

1. Not being clear at all in what you’re saying.
2. Arguing when you get an answer that doesn’t confirm your narrative.
3. Being rude upthread and in your other thread on this topic.

I no longer see the other thread as I’ve hidden it. I shall add this thread to the hidden list too.

It would appear as though you believe that everyone was in collusion against you and your best interests.

The Court have the power to step into the shoes of a party when necessary. The fact that you stated that So I ask the judge who ordered that another judge sign in my place using the senior courts act 1981 ...why did it (court) not do the conveyancing itself...the judge replied it (court) does not do that.. it appears as though you were being obstructive or they believed that you would refuse to sign. In my experience it is only when a party is being, in the courts opinion, unreasonable that they step in and sign the paperwork. I have only come across this once in the 28 years I have been dealing with property matters. That was also in relation to a contentious divorce case where both sides were so adamant that they got their own way that they spent years fighting through the courts.

The PP who said that you would do better to draw a line under things and move on with your life is right.

It is also usual that you (as the benefiting party) would pay the conveyancers fees for the transfer of property B into your sole name. Instruct a conveyancer to prepare the transfer and send it to your exH for execution. If he refuses you can ask the court to either order him to sign or like they did with you sign on his behalf.

I forgot to add the litigation loan existed would have been against the equitable interest of your exH in the properties. If the court order states that you are to get and unencumbered interest in property B then you can discount the notion you have that there is a charge still outstanding over this property. Any monies owed under the litigation loan would have been repaid to allow the transfer of property A and certainly prior to the distribution of the balance of the sale proceeds to you and your exH.

@Collaborate

I was answering the questions put to me. I have been very clear and I believe you understand very well what I say. What I report is uncomfortable reading. I hope I have helped you be aware of the many issues surrounding the use of litigation loans and it is your choice to hide a thread.

Yes it is unusual to use the Senior Courts Act 1981. It was wrong to ask me to sign any selling documents in absence of a contract or a statement of the completition statement. @Collaborate seems to want to lay blame at my door.,,why?

This is odd when I did not introduce material non disclose into a case.

There is a fact here and that is the undisclosed lit loan.

@redastherose

I am reading your replies and am grateful for them. You said:

'It would appear as though you believe that everyone was in collusion against you and your best interests.'

I would like to respond that there are a number of potential motives behind my case. I won't go into these here as it is a matter of my rights and procedure that were the basis of my postings.

Your answer is saying that the loan would be repaid first before division. Can you possibly comment if this is a well trodden process because it is stated repeatedly in debt advice that it should only be taken from the settlement of the person whose loan it is.

Any further comment would be appreciated.