urgent advice required RE: Notice of ejection

[flick666]

Hi All, I am in urgent need of advice, I have been issued with a notice of ejection from the sheriff officers through £11,550 mortgage arrears. I was not asked or informed of this court case were the sheriff granted the notice, I have one week left to eviction date.

 

I got myself in the trouble after my business went down hill, my partner lost her job due to depression. I tried to seek help from the DWP but my partner only received Incapacity benefit, we were turned down for help with council tax and housing bebefit. As i was made bankrupt in November 2008 we had the CAB help us to get benefits. we received income support for 3 weeks and incapacity benefit continued, however we were informed that we would no longer receive help from DWP and all benefits have stopped.

 

We are now faced with eviction and have 3 children at home 1 over 16 1 who is ten and a baby of 2yrs. We have managed to scrape together £6,300 through family and offered the mortgage company a proposal of £6,300 as a lump sum and we would meet all monthly payments in time, (i've managed to get myself a job ) plus an extra £100 plus lump sums of cash once our vehicles are sold to clear the rest of the arrears over 12 to 24mths. They have REFUSED.!!! can anyone please offer any advice on this. We contacted a solicitor who said that the mortgage company are being very unhelpful and that our proposal was a good one, so he offered to call them on our behalf but they have refused to speak to him, (the solicitor is not sure of law and asked for the weekend to look into it) we have heard nothing back. I am now at my wits end as to what to do.. I dont think i would be ready to leave in one week, have over ten years of belongings to shift, nowhere to go, and five dogs to rehome. I know this is our fault for not managing our finances but surely our proposal should be enough to hold on to our family home.. PLEASE PLEASE HELP.!!!

[Ell-enn]

Hi there, are you in Scotland? I am not familiar with the Scottish legal system regarding repossessions. Telephone the court which issued the notice and ask them which form you need to put forward to ask for a hearing to suspend eviction.

 

When you know that come back and I will see if I can help you with a statement for the hearing.

 

Ell-enn

[flick666]

Thanks Ell-enn..!!! Am in Scotland..

[flick666]

Just spoke to the court, only information they can give is to contact a solicitor.. which we have.. He just asked if we were there to defend the case but like i said we knew nothing of it.. Only advice he gave is to contact mortgage company with proposal, but they wont accept it.. Our solicitor is trying to negocate with them..

[Ell-enn]

Hi there, you could contact the Nationaldebtline Scotland - they should be able to advise you on what the process is for getting a hearing to suspend possession. The number is 0808 808 4000

 

There is also the Govan LAw Centre http://www.govanlc.com/

 

Ell-enn

[Ell-enn]

Hi there, I've also found this - explains how to appeal against the eviction:

 

An application to suspend enforcement action under the Act is known as a section 2 order.

The Act extends to loans which are secured on the value of the property, known in Scotland as standard securities or mortgages. Such loans may be a debtor’s main mortgage or a second or home improvement loan, secured on the value of the house.

who can apply for an order?

Applications under section 2 can only be made where the property is used for residential purposes and is occupied by the applicant as a sole or main residence.

Accordingly, the Act does not extend to second or holiday home. Likewise, the Act would not assist the owner of a property which is let to tenants, and not occupied by the owner as his or her main home.

Section 1(2) of the Act sets out four categories of persons who can apply to the court for enforcement action to be suspended.

• the debtor (person with the mortgage) or the owner.
  
• the spouse of the debtor or owner (known as a ‘non-entitled spouse’), where the house is used by husband and wife as a ‘matrimonial home’.
  
• the cohabitee of the debtor or owner (someone living as husband and wife, including same sex relationships).
  
• the former cohabitee of the debtor or owner (someone formerly living as husband and wife, including same sex relationships i.e where the debtor/owner has left the house).
  

Before a 'former cohabitee' is eligible to apply under section 2, the following additional conditions must apply: (a) the debtor or owner must have left the house; (b) the cohabitee must have lived with the debtor or owner for 6 months (prior to the debtor/owner leaving the household); and © a child of the debtor/owner and cohabitee resides in the house.

A child is defined as someone under the age of 16, and includes a stepchild and any person brought up or treated by the cohabitee and the debtor/owner as their child.

when can an application be made?

Because creditors have access to more than one type of enforcement procedure, the time limit for applications depends on which enforcement procedure is used. The time limits for the four enforcement procedures are as follows:

• where a calling-up notice is served, an application must be made before the expiry of the calling-up notice (if you have consented to this notice being dispensed with or shortened, in any case the notice cannot be shortened to less than one month).
  
• where a default notice is served, an application must be made not later than one month after the expiry of the period specified in the default notice.
  
• where proceedings have been raised under section 24 of the Conveyancing and Fedual Reform (Scotland) Act 1970 (remedies on default), an application must be made before the conclusion of the proceedings.
  
• where proceedings under section 5 (power to eject proprietor) of the Heritable Securities (Scotland) Act 1894, an application must be made before the conclusion of the proceedings.
  

The term, conclusion of the proceedings is not defined within the Act, however, in civil court procedure this is taken to mean when the action has been disposed by way of final decree. A final decree is only obtained once the court has determined the question of legal expenses at the end of the case – which can be at the same time decree is granted, or after decree is granted.

In any event, the best advice is always to lodge an application as soon as possible. Where an applicant fails to lodge an application in time, and is subject to decree, it is possible to apply to the court for recall of the decree on one occasion (by way of a 'Reponing Note' in terms of Ordinary Cause Rule 8.1(3). There is case authority supporting this position: GMAC-RFA Ltd v. Murray and Murray (Case Ref A216/2002H) , Sheriff Principal Bowen Q.C, 9 October 2002, Glasgow - reported in Issue 4 Hous LR, October 2003). Advisors should always bear in the mind the separate possibility of a section 129 Consumer Credit Act 1974 application for debts under £25,000 in certain circumstances (e.g. where the 2001 Act does not apply).

 

how is an application made?

There are two ways in which an application can be made.

• where the creditor serves a calling-up notice or default notice, an application must be made by way of summary application procedure.
  
• where the creditor raises enforcement proceedings in the sheriff court, an application can be to the sheriff made during the course of those proceedings.
  

Summary application procedure proceeds by way of Initial Writ, and is an expedited form of sheriff court procedure. Applicants should consult a solicitor immediately if they wish to make an application by way of this procedure.

Where court enforcement proceedings have been raised by the creditor, an application for suspension can be made during those proceedings. Application is made by way of a Minute, and is regulated by the following rules of court (amending the Ordinary Cause Rules): Act of Sederunt (Amendment of Ordinary Cause Rules and Summary Applications, Statutory Applications and Appeals etc., Rules) (Applications under the Mortgage Rights (Scotland) Act 2001) 2002, SSI 2002/7. The Minute must be lodged in court with the appropriate lodging dues (£26 as at 21 February 2003). Those in receipt of IS, IBJA or who have appliued for civil legal aid are exempt from lodging dues: see the Scottish Courts wesbite.

what can the court consider?

The granting of a suspension order under section 2 of the Act is entirely a matter for the discretion of the sheriff. The test is whether the court ‘considers it reasonable in all the circumstances’ to grant an order. However, in considering whether to suspend the enforcement rights of a creditor, the court must have regard to the following issues in particular:

• the nature of and reasons for the default,
  
• the applicant’s ability to fulfil within a reasonable period the obligations under the mortgage,
  
• any action taken by the creditor to assist the debtor to fulfil those obligations, and
  
• the ability of the applicant and any other person residing at the house to secure reasonable alternative accommodation.
  

Where the above noted issues are in dispute or require further evidence to be led, it may well be necessary for the court to fix a proof (the civil equivalent of a trial). Alternatively, the court may take the view that factual issues are sufficiently agreed to be in a position to determine the matter without the need for proof. Ultimately, procedure under the Act will be developed as case law progresses.

As regards what constitutes a ‘reasonable’ period in which to repay mortgage arrears, each case will turn on its own facts and circumstances. The experience in England and Wales is that the ability to clear arrears over the period of the loan should be looked at in terms of what is a 'reasonable' period: see Cheltenham and Gloucester Building Society v. Norgan [1996] 1 All ER 449. This approach should be advocated in Scotland stading the express wording of section 2(2)(b) of the MRA. See also the Govan Law Centre case of Abbey National plc v. Briggs.

what can the court do?

Where the court grants an order under section 2 of the Act it can suspend the creditor’s enforcement rights (a) to such extent, (b) for such period, and © subject to such conditions, as it thinks fit. Proceedings may also be continued, for example, to allow the repayment of arrears to be monitored.

While an order under section 2 is in force, a creditor can take no further action. The effect of the order – while in force - is equivalent to the debtor never having been in mortgage arrears.

The court is empowered to vary or revoke an order made under section 2(1)(a) where requested to do so by either creditor or applicant. Accordingly, where an applicant fails to adhere to the conditions of an order, the creditor could enrol a motion requesting the order to be revoked. Likewise, where an applicant’s circumstances have changed (for example, a drop in income) it would be possible for the debtor to go back to the court (by way of motion) and request a variation of the order.

If in doubt, applicants should take advice from a law centre solicitor, private firm or solicitors or advice agency.

[flick666]

Thanks for all your help.. I'll give them a try..

[Ell-enn]

You're welcome, let us know how you get on.

[flick666]

HI.. Just had the solicitor on the phone and apparently the court were the notice of ejection was granted does not offer a section 2.. he recommends getting back in touch with mortgage lender and put proposal to them again.. But they wont accept.. we have tried to no avail.. Is there anyone we can complain to with regards to the lender not accepting the proposal.. I have no clue what to do next.. I dont want to loose my house over £11,550 arrears, the equity out weighs the amount owed..

[Ell-enn]

Hi there, I have found the Scottish Shelter site - if you ring them in the morning they may be able to help. You need to select the area you live in and you will get a number to ring.

 

Sorry I can't help you better - but I don't have knowledge of the Scottish legal system for repossession.

 

Ell-enn

[flick666]

Thanks again.. Iam sorry to be a pain.. Iam just in a right panic.. Thanks for all your advice and help.. Have a nice night.. Regards Flick..

[Ell-enn]

I'll try and find out more information if I can, but I really think your best chance is to contact either Shelter, Govan Law Centre or Nationaldebtline Scotland.

[flick666]

HI.. All is good they finally accepted proposal.. After receiving some information from the sites you mentioned.. Told them I was applying for a section 2 and had contacted the Financial ombudsman over their lack of help.. So a BIG HUGE THANKS AGAIN..!!!!!! wouldnt have known were to turn if you hadn't let me know about Shelter scotland... Thats a big weight off my shoulders now.. Wish i could give you a big hug regards Flick xx

[Ell-enn]

That's marvellous news Flick - I hope you can relax a bit now. Put your feet up and have a glass or two tonight

 

I'm going to put a copy of this thread in the Repossessions forum in case there are others living in Scotland who have the same problem as you - that way they will know where to get help.

 

Ell-enn