You should, in theory, be able to claim whether it has been returned to you or not. The basis for the claim is that it hadnt been protected and you werent given notification of the scheme in the prescribed form, both of which should entitle you to apply for the penalty. The troubel is the old deposit legislation was so badly drafted it fell apart when tested in court cases which is why they had to re-draft it to handle the problems thrown up by the wording of the original. God only knows if it will hold water this time but worth a go.The trouble I would anticpate is that under the old rules the penalty was a fixed amount of 3 x the deposit but many judges were unwilling to go that far when a landlord had merely not known about the law or had made a mistake. A judge in your case make take the view that in handing back the deposit it was showing a certain willingness to cooperate and so may not grant much of a penalty. Its too early to tell as the enw version of depsoit protection is literally only a few weeks old

It sounds like you asked the wrong person for the 2 months. The Mortgage Reposession (Protection of tenants) Act 2010 relates to mortgage lenders taking action, to grant tenants 2 month's grace, not the landlrod. If it has been re-let it sounds like she averted evcition in the end anyway.As for the deposit. The protection rules were strengthened and brought back in by the Localism Act and landlords had until 6th May 2012 to get any unprotected depsoits in. Part of the problem with the old law and how it was worded was that it stated the courts would order the landlrod to pay back the deposit and "Must also" order them to pay a penalty, so if the deposit was returned the "Must also" was already invalidated. this has been corrected.The procedure is to check with the 3 schemes, DPS, TDS and My Deposits and get them to send you confirmation, email will do, that the deposit wasnt protected. Then get a form N208 from either the HMCS website or directly from the local county court and launch a cliam, which will now be up to 3 x the amount of the depsoit.You can never guarnatee a result in county court however but good luck

Yes Skins I would certainly apply for an adjournment to a later date if there is a query about the level of arrears. You wont need to fill in an N244 because the hearing date has already been set and so the information can simply be presented on the day. You say she can now afford to pay the CMI plus £40 a month and has done for the last 2 months This is a very good sign. Is the £40 in line with the Norgan calculation? or is it short of Norgan? this is a big point. If it is Norgan compliant or more then you can ask for the case to be adjourned generally and sort the arrears sum out in your own time before asking them to capitalise the arrears further done the line. Also you do not state how much equity there is in the property. If there is quite a few quid in there then the banks investment isnt under serious risk and she has 2 good month's payments to prove her finances are stabilising. If she can afford the CMI plus Norgan then that should bring it into line with the judges discretion under Section 36 of the Administration of Justices Act 1970 and they can adjourn, suspend, strike out etc.

Still confused mate. Maybe it's the lateness of the hour. An SPO is still a possession order. And that order wouldnt/shouldnt have been granted unless the claimant followed the procedure to get there

Not enough info in your post to be able to tell Yeats. The pre-action protocol (including submission of an N123) should have taken place before the SPO was granted. If possession was granted then the judge was probably satisified with the pre-court procedure (although not always and it is worth checking to see if it slipped by a judge desperate to get to lunch) SPO's are usually granted 'on terms'. The terms commonly being that the defendant pay the contractual monthly installment (CMI) plus an agreed amount off of the arrears. In mortgage cases usually based on what is called the Norgan figure. If it was an SPO that the defendant didnt keep to, then the claimant can go straight for Bailiff's warrant using an N325 but if possession was 'postponed' (PPO), then the claimant cant go direct to bailiff's without further permission of the court.

No reason why you shouldnt ask the claimant before court. they have to have one to show the court so should be able to supply one. If you ask them for one and they dont give you one, bring this to the judges attention. Bear in mind that all paperwork being used in court for possession should be shared with the claimant before the hearing so that the defendant has an opportunity to prepare their defence. As I said though, the first time I get to see them is usually 2 minute before we go in, thats why I have developed the habit of focussing quickly on those points I mentioned and asking the defendant if this is as stated. The most difficult part is where the claimant lists all phone calls and letters. If there is a long list it is often difficult for the defendant to agree or dispute what is set down while we are sitting in the waiting area. When I begin negotiating with lenders I write asking for all the information that would normally go on an N123 anyway, on the basis that they will have to provide it at some point. They just ignore the request haha

Yeah its for claims after that date so we should start seeing them come in soon. The lender has to submit an N123 with their court paperwork and yes, the borrower is allowed a copy. The thing is I have yet to see one proferred up front. The first I see of them is when I turn up at court to defend. You can see the blank form on the courts website. Common mistakes I see so far, and several judges are commenting on this, is for point 3 of the form which states "Do you have evidence that the defendant has made a claim for Support for Mortgage Interest payments, the Mortgage rescue Scheme, Mortgage payment protection (insurance). If yes, please explain why possession proceedings are continuing". Point 7 is often breached too. This asks if an offer has been rejected by them within the past 3 months and if they have complied with point 5.5 of the pre-action protocol. 5.5 states refused offers must be in writing and sent within 10 business days of receipt of offer. Many times they just say no over the phone and dont follow up with letter in required time....if at all. Up until now these common breaches were often not taken that seriously by the judges (speaking solely from my own experience in the 3 courts I go to), in that I have never had a case struck out on basis of a breach but in making the protocol a set of rules, defence advocates or borrowers should be able to mount a serious challenge based on breaches, probably even basis for a complaint to FSA. I have noticed judges asking to see the N123 more regularly in the last few weeks so maybe things are going that way. I will be attending our local county court users group meeting soon and will be able to ask the judges how they will view this and report back on here.

Watching this one closely for my clients. The copy I have doesnt state 'Must' in every point. most notably 7.2 where it says "Starting a possession claim should normally be used as a last resort" but then goes on to say "A claim 'Must' not normally be started unless all other reasonable attempts to resolve the position have failed". Interestingly they have added, to the stadard 4 things to consider, a line stating "Make use of any government forbearance initiatives in which the lender chooses to particpate. Since the demise of HMS, that pretty much only leaves Mortgage rescue, and our zone agent is going to be restricing eligibility to prioritising 3 bed need or properties adapted for disability. So not too hopeful about the new changes. A couple of articles I have read, on solicitors websites, dont seem to see much change because they state most lenders are following the protocol anyway. This is complete nonsense. 99% of the cases I deal with the lenders still go for possession without looking into alternatives and also fall fould of 5.5, the requirement to turn donw an offer in writing within 10 business days. So I am hoping that once the new cases come under the new protocol, any day now, we may be able to get applications struck out, rather than just going for suspensions and adjournments based on Norgan offers.

I know how you feel SPV. I work for a local authority doing the government's Mortgage Rescue scheme and have to negotiate with the banks all the time. When we start a case we have to send a off a letter of authorisation sugned by the borrower so the banks can talk to us and they lose them constantly, which delays things and pushes fees up. My preferred tactic has always been to put 4 or 5 staples on the letter and the authorisation and yet, when I ring them weeks later (having heard nothing back) they say they have my letter on file but not the authorisation. It happens so routinely for me and my colleagues, with all lenders, that you just know that it must be planned Just after Xmas I met a bloke who is the ex head of mortgage repossessions for a very well known high street lender who is now working for the other side and asked him about it. He confirmed that they just rip them off and throw them in the bin. I agree with El-enn, recorded delivery everytime.