Snake Hill Facts

  These excerpts are from the book:

  Torrens Title

  by R T J Stein

  and M A Stone

  This is relevant as we tried to pay out this mortgage on 5 separate occasions, through 3 sales and 2 refinances, but the lender stopped each transaction by refusing to settle, and demanding outrageous amounts.

  They could only (legally) charge us the principal amount LESS any overpayments not yet returned to us.

  They stopped us from selling the properties, or refinancing them, and instructed the property manager to keep the properties vacant from time-to-time and otherwise kept the rents.

  The above paragraph refers to their right to sell the properties IF we were in default.

  They sued us BEFORE any default could occur.

  Please note, the preceding paragraphs refer to mortgagee sales of property IF the mortgagor defaults, and that the mortgagor must be allowed the opportunity to make OVERDUE PAYMENTS.

  Our payments were in advance when the lender sued us, and took possession prior to the Court hearing.

  By taking the rents from the properties (almost twice the mortgage payment each month), our mortgage payments must have become even further in ADVANCE, not arrears.

  Our lender wrote on 20th October 1999 and 5th November 1999 that they would credit all of the money that they had overcharged us, plus interest, to our mortgage payments.

  This created a new contract and invalidated any default notice (which they should have served prior to a statement of claim, but had not served as we were not in default) and also invalidated their statement of claim.

  Those 2 letters should have stopped the litigation, but nobody in the Supreme Court agreed. Perhaps they hadn`t read any textbooks on property law.

  The following excerpts are from the book:

  The Law and Practice in All States of Australia relating to Mortgages and Securities for the Payment of Money

by E A Francis, BA, AASA, Barrister and Solicitor of the Supreme Court of Papua and New Guinea, Solicitor of the Supreme Court of New South Wales

  This is relevant as the original mortgage contract stated that repayment of principal was to be made "before the due date, on the due date or after the due date".

  The mortgage contract was varied to change the due date for repayment of principal to the 1st October 2000.

  The lender`s refusal to refund our overpayments (because they had overcharged us) extended this term of the mortgage.

  The lender`s letters dated 2oth October 2000 and 5th November 2000 admitting they had overcharged us, and promising to repay the money with interest only toward future mortgage payments created a new contract.

  They should not have sued us while we were still waiting for those prepayments to expire.

  They should not have taken any of the prepaid money to pay themselves "enforcement expenses" as there was nothing to enforce until those payments had expired.