Letter re: court hearing today

[Giddy Kipper]

Please someone help, I feel sick with worry! We missed 3 payments on the mortgage last year and then arranged last October to make an additional £150 per month for a year to clear the arrears. We made this for 2 months and then in December (22nd) we missed the payment. I was planning to call this Friday to make the payment (albeit late) but I've received a letter from a solicitors this morning telling me that I will receive from the court a copy of the claim form and notification of the hearing date.

 

Firstly, if I make the payment as it was due, will it stop this or will I have to pay the whole of the arrears to stop this happening? Secondly, how long does the process of the court date take? Is it likely to be in the next few days or weeks?

 

We can make the monthly mortgage payments, we just had a little difficulty at the time and December was missed due to xmas etc.

 

Please someone help!!

 

Thanks

[Ell-enn]

Hi there, please try not to panic. Make the payment this Friday as you had planned to do. However, in the meantime you need to write to your lender (who is it?) advising of the problem you had and that you are able to continue with the payments going forward. If you are able to get the letter off to them today by special (next day) delivery that would be good. If you need help with the letter let me know and I'll draft one for you.

 

If it does proceed to court you will get a claim form from the solicitors acting for the lender with a court date usually 4 - 6 weeks from when you receive the papers.

 

If that happens we can help you with the defence. However, if you already have a payment plan in place and can show the court you are able to maintain the payments going forward then there is no way a judge would give the lender possession.

 

Kind Regards

 

Ell-enn

[Giddy Kipper]

Hi Ell-enn

 

The lender is GE Money and if you can help me draft a letter, I would be really grateful. I'm a bag of nerves at the moment. If I could get the money together (it's £2200 including Dec missed payments) would it stop any of this going further forward?

 

Thanks

[Ell-enn]

Hi there, if there are no arrears on the account then they cannot take you to court. However, you need to think carefully about how you raise the whole arrears amount - if it would cause you financial difficulty going forward then you may find you are unable to pay the mortgage again and the whole issue would re-start.

 

I will attach a letter here very shortly. You will need to send a budget sheet with the letter and I have affixed one to this post for you. When you complete it make sure the amount left over that you are offering to pay towards the arrears (£150) is what is left after everything else had been accounted for - including the normal monthly mortgage payment.

 

Is the mortgage in joint names? how much is the normal monthy payment?

Budget Sheet.xls

[Giddy Kipper]

No the mortgage is in my partners name only and the normal monthly payment should be £740 but we've been paying £890 to clear the arrears.

 

Can I just clarify then, IF I can raise the funds without crippling us and pay them before the court date, the mortgage will just continue as normal without a hearing?

[Ell-enn]

If you raise the funds to clear the arrears before the court date you would need to contact the solicitors and the lender and get them to cancel the hearing, but we can deal with that if you raise the money.

 

In the meantime, if you send the affixed letter to the lender, you might find that they will cancel court proceedings (we can always hope!). You also need to send a copy of the letter and budget sheet to the solicitors with a covering letter along the lines of:

 

GE Money Mortgage Account No:

 

We are in receipt of your letter ref:XXXX dated XXXX regarding the above account.

 

Affixed is a copy of a letter sent to GE money by special delivery. We trust you will put on hold any further action while we await their reply.

 

Yours faithfully,

 

 

XXXX

 

Encs.

 

Make sure you keep a copy of the letters and budget sheet together with the receipts for special delivery. You can then check on the Royalmail website in a few days to print off the signature receipts. Keep all together safe as you may need to prove you wrote to them asking for their acceptance of your proposal.

 

Any questions, just shout.

 

Kind Regards

 

Ell-enn

Giddy Kipper Letter.doc

[sillygirl1]

In the current climate it is likely they will go for 'suspended posession' which means if in the future you miss just ONE payment or even PART of a payment they can go straight to the court and get you evicted.

 

Sadly GE Money don't like to abide by the Council of Mortgage Lenders rules (not even sure if they are members of the CML)

 

Ell-enn will give you some very good advice on them, follow her instrutions to the letter and hopefully GE Money won't be able to get your house.

[Markiemark1]

If you get the arrears below two instalments the lender won't be able to obtain a possession order.

[Giddy Kipper]

Really? Thank you for that...does it mean they can't take us to court as well? If I pay the money for the last month, it takes it back to 2 months arrears..... will they automatically stop the court proceedings?

[Markiemark1]

Yep - but needs to be LESS than 2 months in arrears - Law of Property Act 1925....they should ask for the proceedings to be adjourned generally with liberty to restore. Most judges will also put a strike out clause, i.e. if proceedings not restored within x months the matter be struck out.

[Giddy Kipper]

So.... (sorry if I'm being thick)

 

We should pay £740pcm which equates to £1480. The arrears are currently £2250 and I intend to pay £900 by next Monday at the latest. This will make the arrears £1350, will this mean that they have to stop things automatically or will I have to apply to the courts telling them it's less than 2 months?

[Ell-enn]

They won't stop things automatically I'm afraid - but if you send the letter I gave you they may not start the process at all - so the sooner you get it to them the better and by special delivery!

 

As repoman says if it gets to court and the arrears are less than two months the judge won't give possession,(he wouldn't give it to them at the first time of asking anyway!) but GE would ask for it to be adjourned with liberty to restore which means if you get into arrears again they can fast track to court.

 

Ell-enn

[Giddy Kipper]

Would we have to attend court or can all this be done in our absence?

[Ell-enn]

I always advise attending court - that way you know what is being said. It wouldn't be the first time a lender has told someone they don't need to attend and then they find out later they have got a suspended possession with terms they knew nothing about.

 

However, we will deal with that if it happens. Send the letter asap and lets hope they do not issue court proceedings.

 

Ell

[Markiemark1]

Ell-een - a small point, but a technical one. In most cases the Judge has no option other than to give possession even at the first hearing, it's how you then define possession. The Judge will mitigate it if possible by suspending any possession order, i.e. possession in 28 days suspended upon blah blah blah. It doesn't mean that the Defendant loses the house.

 

Absolutely you would need to attend court, i always recommend it, because I know I've not always been advised promptly of amended instructions. But yes, hopefully it won't come to it. Make sure you draw lots of attention to the pre-action protocol.

 

Any help needed just ask!

[Ell-enn]

Sorry Repoman I didn't make myself clear. I meant to say that given the circumstances of the op having the ability to pay the arrears over a reasonable time, the judge would not give possession straight away but would suspend possession on these terms. We always use the pre action protocols and the Norgan case law in defences.

 

Ell

[Markiemark1]

Just didn't want people to be shocked when the judge still makes a "possession order" so to speak! Got an interesting one tomorrow - deed not signed by both parties lol!! Should be fun!

[Ell-enn]

So in effect does that mean the loan is unsecured:eek: I suppose if that were the case the buggers would then go for a charging order??

[Markiemark1]

they want a p/o against the one who's signed it! money judgment against both. pointless exercise tbh as the first charge holder is owed more than the property is worth so they've got a cat in hell's chance of getting their money anyway!