Response to Its begun

Steve,

As I understand it where more than 6 years have passed since sale the lender's lawyers say any counterclaim is time barred and the claim is struck out. However, you could try (if applicable) the following:

The defendant asserts that this counter claim is within time as the claimant, under s32(1)(b)Limitation Act 1980, deliberately concealed from the defendant the price obtained for the property by not contacting him for more than six years after the property was sold.

Also:

1. A borrower dose not 'buy' a MIG - s/he just pays for the lender to buy a MIG

2. As nothing is bought, there is no claim for misselling, but there could be a claim for misrepresentation regarding the terms of the mortgage,i.e. of the effect of a MIG (but this is very difficult to prove).

3. It doesn't matter that there is nothing in documentation stating that a borrower will be liable for a MIG payout - liability comes under subrogation under the old 1865 Act, although it has been described as both an equitable principle and a common law one!!

4. The issue of subrogation in insurance cases is nothing new or unique - it is well estabished.

If the lender is being difficult about supplying MIG docs you could include in the defence:

In additionand in the alternative, the defendant countercalims for the sum of £xxxx, being the premium for the insurance policy sold to him by the claimant's employee. There is no evidence that such a policy was purchased and the defendant puts the claimant on proof that the policy was in fact purchased.

Any MIG mis-representation/underselling counterclaim needs to be backed up by evidence, that I think is the tricky part.

You mention the interest and principal aspect presumably you are talking about the fact that the lender cannot recover arrears of interest after the expiration of six years from the date on which the interest became due, as per Bartlett & West of July last year?

You can always apply for leave to amend a defence, and this should be granted if refusal would involve a miscarriage of justice.

If you're interested I have a specimen defence from a solicitor.

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