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Killerschick

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  1. Mortgage companies don't exactly publicise this it's generally more convenient for them to have the order sat there ready for to go straight for a Warrant if you ever get into arrears again. Also, once made an order is enforceable if there are any arrears - the usual two months before it goes to Court goes out of the window. An application can be made on the good old N244 explaining what you're looking for and can be dealt with without a hearing. Make the application with the consent of the mortgage company or without notice and the fee should be £40.00. You will need evidence that the mortgage is up to date such as a statement or letter from the mortgage company. Hope this helps.
  2. Mortgage companies in general (and this does include the sub-prime likes of Kensington) do not register defaults until a property is taken into possession. What mortgage companies do do is report the payment history to credit reference agencies. You say you regularly pay your mortgage late so your mortgage is probably consistently reported as being one month in arrears. You then say Kensington then agreed you could pay a reduced amount, if your payments were normally late this would push the amount you were in arrears over 1 month. This isn't reported as a default but might be shown as 2 months in arrears on a credit reference agency report (it depends on the percentage of the payment made - if 25% or more of a payment is outstanding it is classed as a month in arrears). If your mortgage is showing 2 payments outstanding this is quite likely to mean you are not eligible for a prime mortgage elsewhere. Despite what you might think Kensington are unlikely to be doing this to prevent you remortgaging elsewhere. It is more likely that they cannot falsely report the arrears situation on your account, even if they have come to an amicable arrangement whereby they will not chase you for arrears. Some lenders (usually building society's)can enter an arrangement for reduced payments and if the reduced payments are maintained arrears will not show as accruing. Others (usually plc's or off balance-sheet lenders) can't do this as it would lead to a false impression being given of the quality of their mortgage books to potential investors. I would recommend getting a copy of your credit report from Experian and Equifax to see what is being reported - you might find that your mortgage has shown as being in arrears for months if you do frequently pay late, but it will probably depend on when in the month you pay compared with when in the month they report to the agencies. I would then go back to your broker and see what deal they can find based on what your report says. I doubt you have a case for a claim against Kensington for registering a default without justification for the reasons given above. If I were you I would be making a fuss about being charged a penalty rate for unauthorised letting when in occupation. The strength of your case is undermined by the fact that you didn't apply for consent to let before renting the property (in the circumstances it's likely it would have been granted and the fee would've been peanuts compared with the penalty interest) but if you've got proof you live there again now - utility bills, voter's roll, bank statements etc and evidence of the date you returned Kensington certainly sound unreasonable.
  3. I can confirm that a suspended (or indeed any) possession order in a case relating to a mortgage remains valid even after the arrears have been cleared. You have been given incorrect information by the Court and I would advise you never to trust what you are told by a someone in a Court office as they are poorly, paid administrators with absolutely no legal knowledge. Quite possibly they confused the law in relation to mortgages and rent, once the arrears under a postponed (formerly known as suspended) order in a rent case are cleared the order is automatically cancelled but NOT with orders in relation to mortgages. It's a bit complicated (I can't think how to explain properly) but it's partly because the mortgage technically falls due in it's entirety as soon as it completes and the mortgage company shows forbearance in accepting monthly instalments so there's always an amount outstanding. Technically mortgage companies don't need a possession order to take possession at all (see Ropaigealach v Barclays) but unless a property is abandoned most mortgage lenders will go through the courts before taking possession.
  4. An application can be made to the Court for a possession order to be cancelled once the arrears have been cleared. It has the advantage of slowing down proceedings if you fall into arrears again in future as the mortgagee will have to issued from scratch. The disadvantage is that you will get charged all over again for the preparation of the claim. The best option is not to fall back into arrears after having the order cancelled.
  5. Absolutely not. I have not heard of a single scheme of this nature which is not a total rip off. Your niece would more than likely lose all her equity, end up paying over the odds rent on an assured shorthold tenancy with no security of tenure (i.e. out on your ear as soon as there are any arrears). At least if she looked for somewhere else to rent (whether with local authority assistance or privately) she would have her equity as a nest egg. I would suggest you wait for the CAB appointment and take their advice rather than get involved with the kind of sharks who run these schemes. Regards
  6. It sounds as though the original order was granted some time ago and the £50 per month she is paying towards the arrears is under the terms of a suspended order. If this is the case presumably payments under the order have not been maintained to enable the mortgage company to apply for a warrant. The CAB is definitely the best place to go, they can assist with an N244 if appropriate but if not they can give advice about reshousing in her local area. They are often able to assist at Court as well, particularly in the London area. Make sure your niece takes absolutely all her paperwork relating to the mortgage and the possession proceedings so they know what course of action to take. It may help her to get local estate agents to value the property even if she doesn't put it on the market. Proving to a judge that there is equity is a plus point as it suggests the mortgage company is at less risk and makes the judge more inclined to give the defendant more time. Your niece probably has 4-6 weeks before an eviction date depending on waiting times for a bailiff appointment from the local court. She can make an application to suspend right up to the day before but it's inadvisable to leave it too late as it gives her less time to prepare if things don't go her way and makes the court less sympathetic as they are more likely to think it's a stalling tactic.
  7. If the mortgage is unaffordable then your niece should contemplate giving up the property and living somewhere they can afford. However, before deciding they can't afford the mortgage it might help to see a mortgage broker who could find a new deal for them. It's not the best time to be looking for a sub-prime mortgage especially as their loan to value is over 75% but there might be something out there. As there is still quite a lot of equity she would be unwise to let the property get taken into possession and sold by the mortgagees. While mortgage companies are obliged to obtain the best price possible under their duty of care to their customer, vacant properties generally do not go for as much as an equivalent occupied property. You don't say what stage possession proceedings have reached (is there an order? has there been an application for a Warrant? has your niece got an eviction date?) but it is not too late to put the property on the market and try to sell herself to get the best price possible, she could even put it into auction herself to achieve a quick sale. If eviction is imminent she needs to take steps ASAP and then make an application to the Court to suspend the Warrant. As to whether the Court grant a suspension depends on the circumstances. If there have been previous suspensions and it is obvious the house has only just been put on the market the judge is unlikely to agree to it but if it's a first occasion and progress has been made by the date of the hearing such as viewings a suspension is quite likely. I wish your niece luck.
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