reposession 2/09/08

[OLIVE.FAMILY]

Hello again.

As some of you know I have been here twice before this year. Well hear I am again a third time.

Kensington want me out again this time not for actually missing payments but for being late.

My hubby travels to london to work and has to buy an annual pass. This is a loan from work that gets taken out of his wages each month.

He lost this pass. It wasnt stolen it was lost. Anyway, we had a few months left of paying for that one before we could buy a new one so we had to find the money else where. This meant paying the mortgage late each month. It was either that or not going to work. Of course I panicked and Of course I phoned KMC and of course I have no proof of this conversation ever taking place.

I have just spoken to shelter and they seem to think that I have no chance as I seem to be showing that my mortgage is not taking prority.

Here we go again

olives xx

[Ell-enn]

Hi there, I disagree with Shelter! Your husband needs to get to work to earn the money to pay the mortgage for goodness sake! so his travel is a priority too.

When you say you are paying your mortgage late what does that mean? i.e. what date is it due and what date have you been paying it? Have you actually missed a month's payment?

Can you list the payments you have made since the last court hearing?

If it is due on, say, the 1st of the month and you are paying on the 30th of the month then technically you are paying every month but not on the due date.

Obviously you need to enter an N244 to suspend the possession and we need to get to work on that.

Kind Regards

Ell-enn

[OLIVE.FAMILY]

Hi Ell0enn,
That what I said to her and she said that the judge wouldnt see it like that. Thankyou though a bit of positive energy is just what I need at the mo.

The payments were due on the last working day of each month. I was paying on or around the 15th which is when hubby was paid. The thing is that i was paying on line. So Silly me thought that when the bank said the payee was being paid straight away, it wasnt. Barclays was being paid then it took barcalys about 4 days to pay KMC. So in a away KMC could say I am behind 1 payment and the rest of the payments are being paid a few days early.

I will get back to you tommorow with the list of payments made.

olives xx

[Ell-enn]

How does she know how the judge will see it?

Never mind, we'll see what can be done. Can you let me know exactly what the last court order said regarding the suspension i.e. suspended so long as payments are made on XXx date of the month, the first payment to reach the claimant by XXX etc etc, then list the dates you have made payments since then.

Ell-enn

[OLIVE.FAMILY]

Will do. I will have it all in the morning for you.

Olives xx

[Bona]

God these people keep faith olive familly they will not get you out for that reason Im sure

[surfaceagentx20]

I assume this is a mortgage possession claim which resulted in the making of a possession order against you, the enforcement of which was suspended on terms providing for you to make payment of [1] the monthly mortgage repayments and [2] so much a month off the arrears.

Evidently, Kensington have issued a warrant for possesion of your home. In making an application for the issue of the warrant Kensington will have certified that at the date of the making of the application you were in breach of the suspension terms and that the whole or part of an instalment remained owing. The court officer presented with the application does not interogate the applicant for the warrant. They treat the certifiate as truthful.

From what I can tell, your breach is a minor breach and I am also surpirsed that Shelter were so dismissive. In effect and as I understand things, Kensington are collecting what is owing under the suspension order, but they are receiving payment later than the day on which the payments fall due. I take it when you say they receive it 'late each month' they are receving payment a few days or weeks later; not months later. So in reality when they applied for the warrant there may have been some money owing, but that money was conceivably paid perhaps as little as a few days later. It would be worthwhile for you to check whether on the day the application was made there was in truth the whole or part of an instalment owing.

Let's though assume the warrant was properly requested. You have the power to and MUST apply to the court for the warrant to be suspended. The court has power to suspend a warraant under Administration of Justice Act 1970 s36.

Section 36 says:
(1) Where the mortgagee under a mortgage of land which consists of or includes a dwelling-house brings an action in which he claims possession of the mortgaged property, not being an action for foreclosure in which a claim for possession of the mortgaged property is also made, the court may exercise any of the powers conferred on it by subsection (2) below if it appears to the court that in the event of its exercising the power the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage or to remedy a default consisting of a breach of any other obligation arising under or by virtue of the mortgage.

(2) The court—
(a)may adjourn the proceedings, or
(b)on giving judgment, or making an order, for delivery of possession of the mortgaged property, or at any time before the execution of such judgment or order, may—
(i) stay or suspend execution of the judgment or order, or
(ii) postpone the date for delivery of possession,
for such period or periods as the court thinks reasonable.

(3) Any such adjournment, stay, suspension or postponement as is referred to in subsection (2) above may be made subject to such conditions with regard to payment by the mortgagor of any sum secured by the mortgage or the remedying of any default as the court thinks fit.

(4) The court may from time to time vary or revoke any condition imposed by virtue of this section.

You will see that the court's powers to suspend under s36 apply where 'the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage..'

You haven't told us anything about the equity available in your home, but that may not matter so much. In my opinion, a District Judge will happily find that a mortgagor who is regularly each month paying the sums due under a suspension order albeit late, is a person who is 'able to pay within a reasonable time'. The District Judge will almost certainly weigh up the disadvantages to you and your familiy of being dispossessed of your home and the burden placed on your local housing authority to find you emergency accommodation were you made homeless if the warrant was allowed to proceed, against the disadvantage to Kensington of not being paid on the nail. District Judges are, I understand, as a matter of policy, directed to 'wear a social hat' in situations of this kind. In my view, assuming I have corectly understood the situation, a DJ with his hat on and applying section 36 will have no hesitation in suspending the warant.

For these reasons, again assuming I have correctly understood the situation, I would be inclined to write to Kensington's lawyers setting out the true account situation, the powers of the court under section 36 and the disadvantages and hardship which would follow enforcement. I would also invite them to agree to withdraw the warrant, adding that should they decline to consent and ultimately the court should allow your application to suspend, that you will ask the court to direct [1] Kensington pay your application fee and [2] the disallowance of their costs associated with the issue of the warrant and the hearing (which they would otherwise just add on to your mortgage account under the costs indemnity powers which almost certainly apply to your mortgage). You should get this letter off ASAP because you will want to get your application to suspend into court in good time prior to the date fixed for the eviction.

If I have misunderstood you'd better correct me. Otherwise, good luck.

[OLIVE.FAMILY]

WOW surfaceagentx20 you kinda know your stuff. Maybe interesting to get to know you a bit more. That all sounds evry clever. You are I think pretty much acurate. The only thing that bothers me is that I was last in court with this in April.

Having said that I will send a letter to the solicitors. Do you think you could possibly dratf me one and post it for me. Not that good with big powerful words of the legal kind.

Thanks
Olives xx

Bona thankyou as well. I have kept this a bit hush for about a week and was starting to feel negative. Pleased I brought it out in the open.

Olives xx

[surfaceagentx20]

How about this?

To: the solicitors
Their reference:

Dear Sir,
Re: Kensington v (Your name)

I was alarmed to receive a notice from (name) County Court that you have caused the issue of a warrant for possession of my home and that I am to be evicted on 2 September 2008.

As my account records will demonstrate, each payment which has fallen due since the order made in April has been made in full, albeit two to three weeks later than directed. The delay in payment arises because Mr (your husband) receives his salary on the 15th day of each calendar month. As such, the payments due 30 April, 31 May, 30 June have all been paid and the instalment due 31 July will be paid in this way in a few days time.

I am astonished in light of my payment history, that your client issued instructions to take the drastic step of evicting me. In the circumstances I am inviting you to confirm to me and to give notice to the court that you have withdrawn the warrant. I will expect you to have notified me in writing that you have done this by not later than (say 26 August 200.

You should take notice that if I have not received confirmation by (date as above) I will immediately make application to the court for an order that the warrant be suspended by which I will invite the court to exercise its powers under Administration of Justice Act 1970 section 36. I have every confidence the court will find that my payment record to date demonstrates an ability to meet the monthly instalments within a reasonable time and that weighing up the serious disadvantages which would flow from being made homeless and the resulting burden which would be placed on my hard pressed local housing authority, against the disadvantage to your client of receiving payment a little later in the month, that justice favours suspending or discharging the warrant you issued.

**

If I am compelled to make such an application and the result is as I expect, I will also invite the court to direct your client to pay the costs associated with my application by [1] reimbursing my court fee and [2] disallowing the costs of the application for the warrant and of your attendance at the hearing of my application to be added to my mortgage account, and in doing so will produce a copy of this letter to assist the court in reaching a decision.

I look forward to hearing from you as quickly as possible.

yours faithfully

One other thought: If you have children aged under 18 years living with you, say so where I have asterisked in the body of the letter. Identify them as schoolboy/schoolgirl etc and by their age(s) only. In addition to the above the court will take into account the welfare of children, particularly so if, as would be likely in early September, they will be commencing a new academic year at school.

I'll leave you to fill in the blanks and put the letter in the postbox.

Hope this covers your requirements

X20

[Ell-enn]

Don't forget to send by special delivery so you can prove they got the letter, then lets just hope they reply in the next week or so.

Ell

[OLIVE.FAMILY]

Well done. I am impressed. Thankyou for doing that so quickly. Shall I send one tp Kensington as well or just leave it to the solicitor to pass it on.

Olives xx

[OLIVE.FAMILY]

Yes I will add the children as I have three children. One is about to start juniors or KS2 as it is known and one is about to start secondary school. This is huge for him as he was diagnosed with Type 1 diabetes at christmas and we are just about to change his insulin regime which means he will have to inject at school. All three are on Disabilty Living Allowance as well. This helped me last time

Olives xx

[OLIVE.FAMILY]

Sorry just thought of something else. I havent actually had anything from the court. It was the solicitor that told me when the date was and this was last week. Usually the Bailiff hand delivers me the letter first.

Olives xx

[OLIVE.FAMILY]

Bailiff has been, now have notice from the court. Thats good as I now have case number. I am going to have a bash at wording this letter to bring the kids into it.

Olives xx

[OLIVE.FAMILY]

How does this sound. Please feel free to adjust accordingly Kidsare hanging around at the mo so cant quite think clearly


The court will also note that the disrubtion will detremental to my threee children. My eldest starting secondary school education in September as well as having to try different insulin methods to try and control his recently diagnosed Type 1 Diabetes. My 7 year old daughter starting her junior education as well as endeavoring to to become independent with the treatment of her severe Atopic Eczema and finally my youngest daughter at the age of 6 also having to gain some level of independence with her Atopic Eczema that is affected with her allergies. As well both my daughters are taking mediaction that supresses their immune system.


Thanks
olives xx