Mortgage Fraud: Eviction Feb 18,2009! Please Help!!

[Bonita21]

At 10am at the central london county court

[Bona]

see what I can do

[Bonita21]

Hi, Thank you all so much for your support! I have been able to get someone to come with me tomorrow but thank you all for your kind advice and offers!

I have been having sleepless nights and my stomach is in knots for tomorrow! I do so hope everything will go well and my parents don't lose their home on wednesday!

I will let you all know the outcome tomorrow!

My sincere thanks to you all

 

Bonita x

[gizmo111]

Good Luck tomorrow, you should be OK and the eviction won't happen. However that won't be the end of it as the loan will still be in your dads name secured on his property. You will then need to deal with Swift to get it removed.....we can help with that.

[Markiemark1]

The very best of luck for tomorrow!!!

 

Have pm'd!

 

RM

[Goldlady]

Yes, the very best of luck. Will be thinking of you and look forward to hearing of a positive outcome tomorrow night:)

[missdpd]

Good luck and fingers crossed xx

[brassed-off-2]

will be thinking of you all tomorrow, you will be fine you'll see. Just try to get a good nights sleep tonight (easier said than done i know)

 

All the best

B-O-2

[heliosfa]

Hi Bonita,

 

I've just read through your thread and wanted to say good luck for tomorrow!

 

Thanks,

H

[jackieandwayne]

Everything has been crossed all morning for you - PLEASE let me know when I can move again!

[Bonita21]

EVICTION CANCELLED FOR 18/02/09

 

Will fill everyone in on the details later on when I have more time!

Swift solicitor also attended and he was HORRID!!!

[heliosfa]

Well done! it's a small vistory, but a victory none-the-less!

[brassed-off-2]

Good to hear the news, once you post up the details of today, then im sure the team will be able to help you through the next stages.

 

Dont let the Swift 'puppet' get to you...

 

b-o-2

[hallowitch]

i have not posted on this thread before but i have been watching congratulations

[jansus]

Well the main thing is the eviction is cancelled - We will try and help you with the rest -I already have a letter in my mind - but to be honest I think you may need some professional help for the next stage.

 

Well done so far.

[Bonita21]

Hi,

 

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

 

Bonita xx

[jansus]

I think as the judge has indicated you need legal advice and your solicitors dont seem to have done anything to prove the fraud. I think you need to ask your solicitor what they have been doing and perhaps find a new one pronto, and one that can deal with fraud cases - maybe CAB can help you with a recommendation. This is to big a risk to be dealt with here I feel.

 

 

We can prompt you to ask certain questions but the next stage is you have to prove fraud.

 

I think the Police should be more involved you need to contact them and ask them what they are doing and explain the house is at risk.

 

IMO

 

Perhaps Ell-enn can explain how to find a specialist solicitor?

 

Can you remind me did you do an SAR but the lender refused to give you all the information?

 

Can I also ask you one more question - what will be your parents explanation for letting the "friend" intercept all the post that came from the lender? Just so you are prepared as I feel this will be an important question that will arise.

 

Sorry it has been such an ordeal for you and your family and I think your solicitor has a lot of questions to answer.

[jansus]

Also I dont think the DJ was on the side of Swift - it is just that they can only act on the documents presented to them. It appears your solicitors have not entered a defence when requested, They may not have acted on information provided to them and the fact that they did not appear for you today to defend the possession when they have had since September to answer the lender is not a good sign (to put it politely)

 

The Judge has obviously taken note of the fact that your parents did not use the defence of fraud right from the begining and your solicitor should have been there to explain why this was.

 

The handwriting report may not have been a waste of money and it may be a contributing factor to your whole defence - what I think the Judge was saying is that you can not rely on this alone. It must be part of the evidence.

[Bona]

Firstley you need to write what you have on here to the solictors you are using and ask them for an explanation within 48 hours, telephone the court and ask them how long ther Judge has adjourned it for it will be first open date after ? days that will give us an idea what the time scale is

Also I would get on the the police and ask them for a report on to what they have done and what they intend to do about the fraud they will have made a report Try not to worry

[Malakorah]

Hi Bonita

I am certainly no expert in the field of property but can you not qualify for legal aid on behalf of your dad? also if a suspected fraud has been commited has it been investigated by the police? if so then it is unlawful to repossess a house whilst it is involved in a criminal investigation such as fraud.

[jansus]

Hope your having a rest now - and preparing your self for the next stage .

 

 

If you need any help on how to handle your solicitors or what questions to ask let us know.

[jackieandwayne]

Bonita, please take your parents to your local housing department, here you have a clear cut case of them being unintentionaly homeless. And as i said before, the homeless advisor will have to contact their solicitors because this is so complex - and this may be where you get your best legal advice, and if they are acting for your parents to prevent homelessness then there will be no question of finding anymore legal fees.

 

It really is worth a go, and also to get your family prepared if the worst does happen. Because, if it does, then they are owed a duty by the local authority.

 

I'm also not sure, but if it is illegal to repossess/evict whilst fraud is being investigated - well it would be the local authority who deal with this also.

 

Good luck.

[overdone]

Subbing.........Whoever executed this must really have known what they were doing. By the way, I had one remortgage from Swift without a valuer revisiting.

[Sparkie1723]

I wasn’t aware of this being so close but…..

I would make the Judge aware of this

 

'Lazarus Estates Ltd. -v- Beasley'

"....I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgement of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but see as to deeds....... So, here, I am of opinion that if this declaration is proved to have been false and fraudulent, it is a nullity and void......" ( Denning LJ).

What this means really is …that any instance of fraud with regard to property of any description….no matter who commit’s the fraud or who gains by the fraud…….any instance or involvement with fraud Quote and rely on “once it is proved it vitiates judgements, contracts and all transactions whatsoever; “

sparkie

[Bonita21]

Hi, Thank you all so much for your help and advice!

 

My solicitor called today with no mention of how the court hearing went yesterday all they wanted was for me to send them more money £600 in fact they wanted to know how soon I could send it! Which to me seeing as I was left to fend for myself against a very expensive chambers barrister seems really out of order!

I need help and advice on what I can possibly do next as the judge told me I have a lot of high hurdles to overcome if I am to prevent my parents from losing their home,being in negative equity and paying swifts legal fees and in effect losing everything they have ever worked for!

I am very scared and I am unclear of what to do next,I have no confidence whatsover in our solicitors who do not attend court with us and the following day request more money!

I contacted the CAB rep and he told me what I need to do is set aside the judgement obtained but that is what I have been paying my solicitors to do since March 2008 and they still haven't done it!

I don't believe I have the finances or the resources to be able to save my parents home! If anyone can help me with what I should do next I would be so grateful as I believe I am running out of time and can I file a defense to set aside judgement myself at the court before it is too late?

Also I received this letter from swift today:

Further to earlier correspondence our client has now instructed us to adjourn the possession proceedings. we have therefore noted the file and informed the court.

Our client is entitled to re-instate the case if further arrears accrue.

I am very scared and confused as of course the arrears will accrue because we can't pay for something we haven't done!

Please if anyone could help me with the next stage I would be very grateful!

 

Bonita xox