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On the MIG question

from M Amos (idgroms@hotmail.com)
Due to the controversy regarding the MIG question I recently asked a debt adviser about the problem (Simon Wiggins) on www.debtquestions.com. The following is my question to him, followed by his answer. The site can also send you some useful information for shortfall victims. Or I can forward it to you if you wish.

MIG - M Amos 2002-11-17 02:45:46 Simon,there seems to be a certain amount of controversy on the Home Repo Web Site Forum re the question of MIGS. I see you posted earlier (2002-09-08 12:18:08)that you believed the MIG insurance company has 6 years in which they can pursue a mortgage shortfall. However, I have been told by a NACAB solicitor that the insurer has 12 years, he gave the Mercantile Amendment Act 1865 as the reason, and said the Bristol & West v Bartlett case defined the start date i.e. the 2nd or 3rd missed mortgage payment (subject to acknowledgements/MJOs). Furthermore, a lady posted a message on the repo site saying that in her case a judge told her the insurers had 12 years too. What is your current position on this? Thanks in advance. Mark.

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Re: MIG - Simon Wiggins 2002-11-17 04:18:51 The case at the Court of appeal on which judgement was given on 31.7.02 did not cover every debt or all aspects of debt limitation. It did cover the mortgage element of the a shortfall debt and the interest and other charges. It only covered certain areas and the rest are still open to debate until a case defines what is actually the case. What the case said was that on the mortgage debt itself they have twelve years from default but on the interest and other charges 6 years applies. I would not want to say whether or not a soliciters opinion is valid or not and he is of course entitled to his posistion but it is just an opinion as in mine. THe issue of MIGs is wholly different as they are a debt not charged on land as a mortage is with the charge on the property and registration at the land registry. The case hinted and it is not binding as yet that on all other non land related debts the period is 6 years. As far as I am awaere this has yet to have a binding judgement I know of one court district where a claim has been thrown out at Circuit Judge level on the basis it was statute barred and in another the obospite has been the case. The insuer in the first instance did not choose to appeal I suspect for the reason that the outcome of the case would become binding and it is far from certain that it would go their way. It is basically a simple insuarnce contrcat which benefits the lender by is paid by the borrower which if a certain sitaution arises they have to pay out. It is not a land charged debt and is therefore an ordinary debt as given in "re Pasco 1945". If this is the case then the majority of the current thinking based on the hints from the case mentioned is that 6 years applies. Solicitors make just as many errors as advisers nad everyone else and their opinions are not gospel. Only time will tell whne we get a binding case who is correct. I am sorry I can not be any more helpfull to you in this matter because the Courts and advisers alike have mixed opinions on this and there is not a clear cut binding answer nor will there be until a case goes the wrong way for a debtor who is legally aidable and wishes to take the matter further which is again a whole other other problem. ---------------------------

Looks like everything is as clear as mud, just like the limitation question was before the Bartlett case. Any comments?

(posted 7801 days ago)

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