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...

As pp's have said it is impossible to give more than generalisations as we do not have the requisite information to give a valid legal opinion. It depends upon what the court order said was to happen.

I'm surmising here but a court order could state that whilst the litigation loan would normally be taken from one parties share, if they deemed that unnecessary legal fees had been incurred by a vexatious litigant, then it was fair and reasonable that the court costs and these litigation costs were paid first. So in that case they would be taken off the top prior to the division of the balance.

Why don't you simply request a full and detailed breakdown of the completion statement including clarification of any figures that you don't understand, confirmation of the total sale proceeds generated and ask for confirmation that all parcels of land that were deemed to form part of property A were in fact sold. If that sale took place in separate parts ask for copies of the contracts and executed transfers from their files for your records.

It may be the court's final order is not very clear about whether the litigation loan comes off one party's share or off the whole pot and then the balance is divided.. It would usually be the exact wording of the order that decides what is taken off from which party's share

I have once come across a court signing an document for someone - it is indeed very rare. We get it sometimes with intellectual property where if as a last resort someone who is suppose to transfer eg copyright to someone else simply refuses to sign the paperwork the court has an ultimate power to sign on behalf of that person. I would imagine it is fairly rare in family law too. it tends to be used when someone has been given quite a few opportunities to comply but does not. IT is similar to the issues which can be difficult in divorce of who arranges sale of the house - the not unless you drag me feet first and I will jeopardise every sale (where the court is likely to let the other spouse control the visits to view) and the difficult one of getting someone off the original mortgage when the other spouse does not have a big enough income for that to happen.

@Hiddentruth I actually said '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.' This does not mean that they were taken off the top (ie before your share was calculated). I was simply saying that they would have required repayment in full at this point.

So 2 professional views are that court signing on behalf is rare. It is after all an artice 6 breach of human rights and should be rare!

There was nothing in the orders at all about any loan as previously explained. What was listed in the order was repaid but curiously the mortgage repaid for Property A off that list .,.the biggest loan on the list to be settled on sale has completely disappeared from my credit file as if I never had it. The other joint mortgage from property B shows as you would hope it would!

Lord knows what they have done. I have tried to obtain explanations but to little effect but will try again now more facts are known as to non disclosure. The regulators should be having fun with this one...

Oh god, it is not a breach or art 6. You have had your fair trial, unless you can show procedural breaches of the cpr.

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its not a breach of article 6 of the humans rights act. It is simply the last resort when somone / party is being so stupidly stubborn / obstructive that the court has NO other choice but to force the issue.

Because if the courts did not have the power to sign on the behalf of someone unwilling to sign something there would be no bloody point to the court system.

Oh court ordered me give my house to soon to be EX like hell i am giving them half the house so i refuse to sign the paper work so HA courts are not allowed to force the issue so i get to deny the LEGAL entailment and ignore court orders.

(its so rare as it is THE last resort and not very many people are stubborn enough to let it get to that point).

How else would you like courts to enforce their jurisitction ? sending the obstructive person to prison? fining them huge sums of money? seizing the house and giving it in full to the claimant (aka you forfeit your share).

Basically if the courts did not have the power to force the signing / signing instead it would grind to a perment halt and you would risk leaving the courts basically powerless.

As others have said, this is not in any way a breach of Article 6. If the courts order the sale of a property and one person won't sign the necessary papers the courts can sign on that person's behalf. It is the only way of enforcing the sale.

In one of your earlier posts you seemed to suggest that the court should have done the conveyancing itself. Courts don't do conveyancing. That isn't how it works.

As Collaborate said earlier, the real question is whether the loan should have been disclosed. From the description you have given it sounds like there may have been a material non-disclosure in which case you can go back to the courts to get the order changed. You need to consult a solicitor and listen to their advice rather than going off on wild goose chases on here.

It is a right where the lother party to be blunt has not complied so if it were ordered against hiddentruth it is likely to have been a situation where hiddentruth were not co-operating (for whatever reason) rather than that hiddentruth were subject to some awful unjustified breach of their rights. It is similar to a clause I sometimes put in contracts giving the other party a power of attorney in advance to sign on behalf of the other person for intellectual property transfers. Those clauses and where the court similarly signs are not a breach of human rights unless entirely wrongly used.

In a divorce context it is a respect for the rights of hte other spouse who has been told they get X that the court then complies with the law and signs the document/property over.

If I were hiddent I would try tog et a short list of the main issues and tick them off if they are weak points like human rights and data protection. I would then see what was left that might have legal merit - eg if a spouse hid £100k of money deliberately and that has now come to light and is a sum big enough to justify the costs and time and hassle of trying to get an order undone. If there were not many good points left then I would try to put it all behind you, go out and out earn the other spouse, earn tons of money and get your revenge that way.

FYI. I am not on a wild goose chase! I raise important points in law which is why you are interested in this post. I could rant a whole lot more like the mad woman some of you want to label me as!!!

This is supported by the findings or opinion or whatever you want to call it that it is unusual to have a court sign. I refused to sign as procedurally this was operating outside due process. I objected to that. The court even suggested their powers were limited in this case when the conveyancing itself was so suspect. The conveyancing solicitor clearly believed I did need to sign but provided no contract and thus was not acting in my interests. I do not consider that bloody minded. I consider that wise and duly cautious when all the evidence suggests you are being stolen from in broad daylight.

Indeed what caused the signing was an application by me in light of the ridiculous proposed undersale (yes hiding the loan sum no doubt) for a red book valuation of all of the property which was being fudged. I had been denied all requests to value my property. That is nuts!!!! Ex did not declare elements of the property on form E but the judge knew they were there by final hearing.

So I am advancing the hidden undeclared litigation loan infected the whole case. Leading counsel confirmed and advanced argument my Art 6 hr were being breached and tried to get a set aside but this was in absence of knowing there were other forces at play ie the loan terms.

So maybe it is a discussion point as to whether a lit loan structure outstrips the human rights to property of a legal owner. The extraordinary reason the court signed I reckon is that the irrevocable mandate signed and involving numerous third parties investing my case and my assets...had to be fulfilled.

So are the courts made impotent too in a case wholly charged on assets to investors...?

The full truth is yet to but it seems the loan should never have been set up because the loan company did not ensure the consent from me they required was sought and obtained for them to process and create any loan in the first place. So they all carried on regardless. Lots of people have been dishonest and reckless with my assets. It has not occurred in a vacuum.

I have had to defend myself in this madness but it is very unfair to suggest it is my fault. That seems unfortunately to be rolled out too often when something murky is going on.

@Xenia

Yes good thoughts,,.until the facts are known it is impossible to know what to do for the best. I am still gathering full facts as stepping into court on this case is unwise until these are known.

Oh and @Xenia the refusal to sign was borne out of absence of paperwork and correctness on something as big as this property sale! . I was not being treated fairly. My voice was silenced yet they wanted my signature. Cannot have it both ways. I remain glad I did not sign as the fact I was shafted shows the wrongdoing done to me.

Oh dear. I'm out HNY fellow lawyers

I'm out too. Happy New Year.

So it sounds like you wanted property A and B valued and were not happy with some rough and ready valuation. Usually it's pretty easy to get a rough idea of what a house is worth by looking at what similar ones have sold at locally. In our divorce my ex got 3 valuations (free from local agents) and I got one and we went for the lowest of his 3 which was about £100k higher than mine -but agered that between ourselves as we both wanted it to be over and would rather the other party had more money than more went to lawyers or the case dragged on or we had to have a hearing.

Sales to a connected person at a low value would not usually matter if the amount someone will get is exact eg our consent order had a specific sum my husband was to be paid and it diesn't matter what the house was worth or could be sold at.

I suppose look at what a best and worst case could have been eg my lawyers thought my ex might have got from about 39% to 60% of joint assets if we had gone to a hearing and I compromised at 59% as the difference between those two figures once you took off say £100k legal fees to get to a hearing would have not been worth fighting over. Whereas if in your case there are millions at stake and worth spending a lot of time and energy over trying to get it overturned on the grounds of non disclosure or foul play it might be a different matter.

Thanks @ Xenia...

It is a tragedy because what you propose is that the public can expect to lose a whole chunk because solicitors are not careful to preserve assets and money FOR the family.

We are expected to just suck it up even when there are a series of breaches both procedural and professional never mind ethical.

Onwards and upwards. 2019 should provide the answers to this conundrum.

Happy New Year to all reading this post, both Legals and Muggles!

PS. Would love some case law as a NY treat if anyone wants to throw me a scrap!

No you are not raising important points in law. You are raising points that show you don't understand the law. When you get advice from people who do understand the law you reject it.

The only reason it is unusual for the court to sign is that most people obey court orders. The courts only sign if you are in breach. The rest of that paragraph again shows a fundamental misunderstanding of the way the law works.

I haven't been on this thread much. I won't be back.

"It is a tragedy because what you propose is that the public can expect to lose a whole chunk because solicitors are not careful to preserve assets and money FOR the family."

Most of them do apply a kind of proportionality test. I turned a new client away entirely last week as the sum they wanted to recover was about £8k. No point in their paying me as the costs would soon mount up. You (solicitor and client) weight up chances of success, how much might be won, what the risks are, what the costs are likely to be and then decide how much to spend on solicitors if you use them at all - eg plenty of people will pay me for one letter but not want 2 years of litigation with high bills every month because of how much work is involved.

The new rules requiring firms in many areas of consumer law in force this month should make websites clearer about what things will cost.

In deciding what remedies you should seek it will depend what you want to recover. I usually say people sould concentrate on money as litigating just for the sake of it or to be nasty to someone is a rich man's game. Instead look at which complaint you have is most likely to yield you a lot of money eg if you discover a spouse has £200k more than they said you may be able to freeze that asset, have the court order undone and recover that money. if the amount is not very big people are probably better off just putting the time and effort into over time at work and forgetting about it.

@prh47bridge

Quite an unnecessarily unpleasant tone to your reply. You say:

'No you are not raising important points in law. You are raising points that show you don't understand the law. When you get advice from people who do understand the law you reject it.'

I came on here to ask questions and try to understand how what has happened has. Those questions are selectively answered. Somehow you feel it necessary to criticise for that which only demonstrates the lowly contemptuous opinion you have of public who ask questions.
As it happens I actually have not breached court orders but you are not interested in that.

But ty for yourecognising input nonetheless.

They aren’t selectively answered. They are answered to the best of their knowledge. Without knowing the full disclosure.

Xenia is doing a grand job!

But you really are not raising important points of law. You appear to believe that the non disclosure of your ex-husband's loan has impacted your case as you were not asked for consent. Even though you have been told repeatedly that your consent was not required. So that is not a process failure.

You also appear to believe that you were excluded from the selling process due to the litigation loan. Even though that exclusion was court ordered following due process.

You have made various other allegations of impropriety regarding conflict of interest and misuse of client accounts but given you have no evidence of any wrongdoing that doesn't support process failure either.

You have been given advice worth thousands of pounds of billable time on this thread by many people (not me) and ignore it and insult them. I really don't think your campaign will get anywhere given your approach and attitude, even if it had any merit.

I am still triyng to get to the nub of it but due to lack of time cannot read every post. What I would try do with a client is work out what is the main things that has been done wrong which would yield a lot of money and decide if it were worth pursuing, chance of success etc.

I am still not sure if anything that may have been done wrong - eg husband had a divorce loan has a major financial impact. If his loan shoud haev come off his share of the assets and it wasn't then the amount in play is the difference between those two positions- half what he owes the lander. So take that sum and see how big it is. If it is not much we go out for a run and start dating some wonderful new people and bit ot all down to experience. If it is an awful lot and worth litigating over with a good chance of success then someone might be advised to press on.

I wanted our divorce and my husband didn't. Although divorce is always awful for both sides, that does make my mind set very different - I could say okay let him have say £300k more than he might have and be done with it as at least I get freedom, lower legal costs to pay and it was all completely finished including finances and conveyancing in 7 months, start to finish. For me that was a huge win so I could rush off after that 7 months and go out there and continue to earn money and forget about it all.

Hi @ Xenia

Thank you once again for your continued help...it really is so helpful. I think you understand the issues here. The nub of it is that this lit loan has been used strategically to gain advantage and to enable control over jointly owned assets in order to advantage either the business dealings of the solicitor and their client my ex or my ex alone. I cannot go into too much detail here but with sole control of selling the FMH he could gain advantage which was dishonest because he did not declare into court either the value or even the existence of the full asset he has got control of. Bits of it and access etc were worth money and of interest to persons in his team or neighbours. So he has undoubtedly built in transactional advantage to just himself when any advantage should have been shared with me. .

The judges formula for percentages got removed from the sealed order without any notification or consultation. Those percentages remain in the judgement notes only.

The question I was interested in was how can my data be used by all these hidden investors and loan companies to influence the course of proceedings without me knowing and how could the loan construct even be set up when the loan company requires consent is given in order to even process a loan.

With this matrix of investors in my assets they have literally ripped me off.

You can’t secure a loan on joint assets without the other joint owner knowing about it - unless of course the borrower is taking deliberate steps to defraud the lender and fake the other owners consent.

Have you any way of quantifying the £ losses you believe you have suffered? This has to be the starting point, if you are to determine if this loss is worth your further investment (time, emotional effort and resource) to pursue.

Even if due process has not been followed, it could still 'break your bank' both materially and emotionally trying to 'right the wrong'.

So much good advice has been given on here (I read through this whole thread yesterday) for which I find myself nodding in agreement: having a succinct priority list to focus on, ensuring you are clear what's at stake, going into any further legal action with eyes wise open as to where the fault lies in terms of non-adherence to process, focussing on the facts, remove the emotion (this is not easy, I know).

Look after your health, your present and future life awaits.