Thank you all so so much for your kind support it has been a long and tiring day and I am completely exhausted but relieved my parents eviction was oncemore suspended!
We arrived at court this morning and shortly after the swift solicitor arrived he approached me and my father and stated that he was opposing our request and gave me a skeleton copy of the reasons why!
Upon reading this I became very nervous as they had taken me by suprise with their defence form and showed me that the solicitors we have up until now been paying have really not been doing much and completely threw me in at the deep end!
The Argument on behalf of the claimant is as follows:
This is the hearing of D's application dated 13.02.09 to stay execution of a warrant of posession which is due to be executed on wednesday 18.02.09
C opposes this application for the reasons set out herein.
C is a mortgage lender,who made various advances to both D's between March 2005 and september 2006,secured against the property. On 19.06.07, C issued proceedings for possession of the property on the basis of mortgage arrears.
D2 filed a defence form to the proceedings however on 22.08.07, a possession order was made by DDJ Middleton-Roy,ordering that possession be given up by 17.10.07. It seems that following that order C eventually obtained a warrant of possession to be executed on 17.03.08.
On 18.02.08 D2 sent to C a signed form of authority to forward all documentation and information relating to the property to stephensons solicitors.
On 10.03.08 Stephensons wrote to C,saying that D in fact had a good defense to the claim for possession,on the basis that D2 had been the victim of fraud.
On 14.03.08 DDJ Abrahams ordered that upon D's undertaking to file an application to set aside the possession order and file a defence by 4pm on 28.03.08
a The warrant be stayed until the return date of this application;
b Application adjourned to first open date after 14 days
c Application to set aside possession order be listed for hearing this application to suspend with a time estimate of 30 minutes.
The following negotiations between solicitors for C and D, D2's solicitors requesting certain documents and C's solicitors agreeing to an extension for D to file a defence until 14 days after C provided that documentation.
On 08.05.08 D2's solicitors wrote to C,enclosing a notice of hearing which D2 had received from the central london county court (CLCC) D2's solicitor said they believed that it had been sent ,and the hearing listed in error. Neither C nor its solicitors had received the notice of hearing
On 14.05.08 Stephensons filed a Notice of acting on behalf of both D's. On the same day they sent to C's solicitors a fax they had sent to CLCC and informed them thet D's would not be in attendance at the hearing. The fax that they had sent to CLCC explained the position asked that the D's be released from their undertaking pending the receipt of futher information from C. Further they apologised to the Court for the non-attendance of the parties at the hearing and asked for the non attendance to be excused.
On 14.05.08 in the absence of both parties and having read D's letter DDJ Glasner made the following order
a The action be adjourned generally and the claim be struck out if no request to restore it is received by 1 September 2008.
On 12.06.08 C's solicitors sent a letter to D's solicitors setting out the details of the last three agreements and attaching all the relevant documentation in relation thereto. In that letter they commented that they could not see how the alledged frauds could be sustained. In the same letter C's solicitors explained that if no application to set aside the possession order were made by 4pm on 26.06.08 they would take steps to enforce the possession order.
On 08.09.08 following correspondence over the previous four days C issued a warrant of possession.
On 10.09.08 D's solicitors forwarded to C an expert report that they had obtained and asked in light of that report whether C would consent to set aside the possession order. On 11.09.08 C's solicitors responded that they were prepared to cancel the imminent eviction but not to set aside the possession order. Nothing further was heard from stephensons D's solicitors since that date. To C's knowledge,however they have not come off the record.
C has subsequently obtained a further warrant of possession. d's have now applied seemingly in person to stay,suspend the warrant of possession.
The courts only jurisdiction to stay execution prior to execution of a warrant of possession issued on the basis of mortgage proceedings comed from section 36 of the Administration of justice act 1970,and is excercisable only "if it appears to the court that in the event of its excercising 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.
the circumstances in which a warrant for possession could be stayed or suspended after a warrant has been executed were laid down in Leicester City Council v Aldwinckle The principles have been summarised thus:
"after a warrant for possession has been executed in this class of case it can only be suspended or set aside if either the order on which it is issued is itself set aside the warrant has been obtained by fraud there has been an abuse or opression in its execution
The merits of the grounds relied upon
It is C's position that the order of 14.05.08 is inexplicable in the context of litigation and should be set aside. In particular
a The court made the order even though it was not requested by the D'd,neither side attended the hearing,and C did not recive notice of hearing from CLCC
b The court has no power to strike out proceedings in which judgement has already been entered
c D's were at the time of order in breach of undertaking given to the court 14.03.08 to file a defence and application to set aside-they still have not done so
d In fact a defence was filed in original proceedings there was no mention of fraud
e further at time of the order there was no evidence on file to suggest that a fraud had been perpetrated or that there was any other reason why the possession order should have been set aside
f On the eve of the 14.05.08 hearing d's solicitors wrote to the court saying that "we understand the position to be that our client remains the subject of a possession order" and explaining why they had been unable to comply with the undertaking given on 14.03.08
Accordingly C respectfully asks that the order of 14.05.08 be set aside persuant to CPR
Complaint to the Financial Ombudsman Service
In circumstances where a possession order has been in place since August 2007, and no application has ever been made to set it aside,it is contended that the court should not go behind that judgement and that any application made to,or potential findings of, the FOS are irrelevant for these purposes.
Withdrawal/dismissal of previous warrants
D's rely on the fact that previous warrants of possession have been suspended or dismissed. However on the occassions where the court has suspended a warrant as on 14.03.08 or where C has consented to its dismissal as in septemver 2008 this has been on the basis that D's would make an application to set aside the possession order In fact although the possession order was made in August 2007 and D's solicitors first suggested that an application would be made in March 2008,still no application has been made or defense filed to the claim. it is contended that it is now too late,and the court should allow the possession order to be enforced
it is submitted that none of the other grounds advanced by D's have any substance. In particular as to their alledged need for assistance D's have solicitors on the record and have done so since March 2008.
For the reasons set out above, it is contended that the grounds of D's application has no merit. No application has been made to set aside the possession order,nor has there been any oppression or abuse of process in obtaining a warrant for possession. D's do not even suggest that they are able to pay off the mortgage arrears. Accordingly C humbly asks the court to dismiss the application and allow the execution of the warrant of possession to take place on 18.02.09
As you can see Swift have gone to all expenses to hire some very good solicitors. Swift are also holding my parents accountable for all their legal expenses!
Although the judge was very curteous with me I cant help feeling like he was favoring Swift he even asked their permission if I could stay in the courtroom with my father!
I really do need help now, I feel my solicitors have been messing us around as some of the arguments swift stated I had no knowledge of them,our solicitors have not kept me informed!
The judge has suspended the eviction and is taking it out of court but having it bought back in on the next available date he warned me that I need to seek legal advice and that stephensons are still on record and they either represent us or remove themselves from our file!
He warned I have many high hurdles to overcome and I do not know how much time I have to do this, I am once again scared and my head is spinning.
I mentioned the handwriting expert report but the judge told me that it was inconclusive and just an opinion so why did stephensons have us spend money on a report that now seems worthless when they could have used that money in order to set aside judgement on the date stated by the court.
There were times I was shaking as I genuinely thought my father would lose his home today!
The judge then even asked swift if they preferred the next hearing to be listed with him.
The odds were stacked,the eviction suspended,how much time do I have now I am not sure.
If anyone can please help me and advise me on my next steps I would be very grateful