Kensington First Court Hearing and got 28 day possession order.

[Taz11]

Hi,

To cut a long story short we had our first possession hearing today (20th) with regards to arrears on our Kensington Mortgage. I had initially asked for a "holiday period" from Kensington and they declined "its not their policy". I asked if I could rent our property back in February, they didn't answer. I have asked if the arrears could be added to the end of the mortgage, they didn't answer.

I was eventually sent a court hearing date and we attended, giving the judge all the above information................and told her we are waiting for the return of an MI12 form from the benefits agency who had advised us that we are eligible for payments on our interest only mortgage. The MI12 form was sent recorded delivery on the 10th August. I asked that if the benefits agency were able to make payments on the mortgage, I would possibly be able to make payments on the arrears (I'm currently on JSA).

 

She basically ignored this plea, and said as we have no confirmation of how much the benefits agency will pay, I have no option but to order a 28 possession. I was gobsmacked!!!. I now don't know which way to turn??? or what happens next. She advised that a warrant would be issued, but this may take a few weeks. Is there any advice anyone can give me???

 

 

I've since read on here that an order can't be placed whilst awaiting benefits approval?? Where do I stand, and can I contest the decision, given that we are waiting for Kensington to reply??. I've contacted the DWP and they have not had it returned by Kensington.??

 

I sent it recorded delivery and have the postal receipt.

 

I have a wife and two children and panicking

Thanks

Taz11

[citizenB]

Taz, I am very sorry to hear this. I have alerted the site team..

[Ell-enn]

Hi there, the Civil Justice Council Mortgage Arrears Pre-action Protocols state that no action for possession should be instigated while ever a claim for mortgage interest relief is in progress.

 

At the end of the 28 days, an eviction warrant will be applied for by Kensington. This usually gives another 14 - 21 days. So there is every possibility that your claim for MIR will have been sorted before the warrant is issued. You can then apply to the court for a hearing to suspend the eviction and if the DWP are paying the mortgage and you can pay towards the arrears you should succeed in keeping your home.

 

Give Shelter a ring tomorrow and see if they can help with the DWP claim.

Shelter England - The housing and homelessness charity

 

How much are the arrears?

 

Ell-enn

[Taz11]

Hi Ell-enn,

 

Thank you for taking the time to look in on my post. I have rang my local benefits agency who sent me the MI12 form and they have had no response from Kensington. Will Shelter be able to give me any more advice on this or will it be down to my local agency.

 

Is there any action I can take if the court has ordered a possession, but obviously not taken into consideration the fact that benefits have been applied for. In other words was the judge in the right to order the possession.

 

I've also just read that a lender must reply within 10 days to any proposals put forward by the borrower..........they didn't!!!. I requested advice on possibly renting the property, adding the arrears to the mortgage, reducing the payments and they replied to none.

 

I'm worried that I'm shutting the gate after the horse has bolted Is it a matter of fact of just waiting for the warrant to drop through the door.........or can I appeal the decision that has been made, now that I have more information to the protocols they should have recognised. (both the court and Kensington).

 

The arrears is approx £18,000

 

Thanks for any advice,

 

Taz11

[Ell-enn]

I assume you sent in the N11M defence form before the hearing?

What did you put in part 27 of the defence form?

 

You have 28 days before anything else happens, hopefully you will have your claim for MIR sorted by then. I think Shelter may be able to intervene on your behalf - ring them and see what they say.

 

£18k is quite a lot of arrears, perhaps the judge thought that you wouldn't be able to clear them within a reasonable time. How much did you offer to pay towards the arrears?

 

Ell

[Taz11]

Hi Ell-enn,

 

Wrong I know, but unfortunately I went into this blind, where I should have requested advice/help. Basically I stated how it would have a drastic and stressfull effect on our family, especially with myself and my wife being currently out of work and trying to survive on JSA. It was never our intention to default, etc... etc..., and resulting in us having nowhere to live having owned our own home since 1993.

 

I shall definately give shelter a call and see what advice they can give.

 

They requested a mortgage payment plus arrears which, on £402 jsa a month, was not feasible. I tried to explain that if the benefits claim was successful, then I could possibly make a payment to the arrears from the JSA advances. She did advise that they would/could look for a payment on the arrears over the remaining term of the mortgage (18yrs), but she still went ahead and ordered the 28 days I also advised that the rental value of the property is £2200-£2500, which would cover mortgage payments and an arrears payment, but until Kensington agree to its rental I can't designate an agent. She did say to their "representative" ( who had none of my letters I sent to kensington, and wasn't aware of them), that Kensington must reply within 7 days to advise me if they are willing to let me rent the property.

 

 

I am still rather miffed though, how she can order the 28 day possession whilst a benefits claim is present ???

 

thanks

 

Taz11

[jansus]

How many months payments does the £18000 represent? Is that all arrears or does it include charges? 3what was the original mortgage and what do you estimate as the house value at the moment?

[Taz11]

Hi Jansus,

 

The arrears amounts to approx 6 months payments. The original mortgage was £497,000, and approx value is now £495,000. This is what we have reduced it to sell. It was originally up for £575,000.

 

We have now got a viewer on Tuesday and someone coming to value it for rental on Thursday. Rental value would cover the mortgage and I could then possibly cover a small arrears payment.

 

Are the mortgage company likely to understand if we receive an offer on the property and able to sell??

 

Kensington, as yet, have not replied to the Judges request to advise us if we can let the property. Is this something I could use as a defence???.

 

Ringing shelter Monday to find out about MI12 form, which Kensington seem to have ignored.???

 

 

Having now realised there are mortgage arrears protocols, which I believe Kensington have not helped with in any way, is there anyone or organisation I could complain to??

 

 

Thanks

Taz11

Edited August 22, 2009 by Taz11

[jansus]

I would contact kensington to remind them of what the judge has said.If you do get a buyer you will have to get permission to sell if it is below the CURRENT mortgage value . In other words if there is any negative equity.In your position I am guessing that even if you get help with your interest payments the cost of running what must be a large house will be difficult in your current situation. Because of the amount of arrears at the moment you will still probably be facing a mortgage shortfall.So taking all that in to account if the rental value covers the mortgage and some arrears I would have thought that would be your best action. If house prices do increase because your property is worth more then a small percentage increase may bring you out of negative equity quite quickly in the future.I will try and find the link to the latest protocol for you.

[jansus]

Pre-Action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property - Ministry of Justice

[Taz11]

Hi Jansus,

 

Thanks for the information and advice. Unfortunately Kensington ignored all the proposals including capitalising the arrears, which I thought was one of the protocols. Looks like I have nowhere to go at the moment with this......only a good rental income looks like it might save the situation, but with only 28 days, it seems pointless.

 

Thank you for the link Jansus, do you think there is any point in complaining to the FOS??. I made proposals, requesting if we could rent, if we could add the arrears to the mortgage, requesting a payment holiday, and they didn't answer to any of them.........let alone in a 10 day period.........and they also haven't replied to the MI12 form

 

thanks

Taz11

Edited August 22, 2009 by Taz11

[jansus]

You do have the following options:

 

1) if you get an interested buyer you can appeal and ask to stay in the property while the sale goes through.

2) If you can rent out then again appeal against the possession. A years rental period would be good

2) If you can find out what help you will get with the mortgage and then if you can meet your MP you may at least stabalise the arrears and agin buy time in the hope your situation will improve.

 

 

Have you checked www.entitledto.co.uk

 

and also www.direct.gov.uk

 

there are some good links on these sites.

 

You have nothing to lose by contacting the FOS . Normally it is a slow proceedure but if you explain that your home is at risk and that renting it out will at least give you a breathing space, they may help.

 

 

Fight if you can because you will lose all control over costs and the SP if they get possession. At this stage besides the obvious emotional upheaval this has to become a loss mitigation exercise. Every penny still counts.

[Taz11]

Thank you Jansus,

 

Received a letter from the solicitors today requesting my intentions on mortgage payments and arrears now that a possession order has been placed. This must be put in writing to them in 7 days.

 

 

What would be your reply??

 

I could say we have the possibility to rent (but Kensington have not advised us that we can (the judge requested they advise us in 7 days)).

 

I could say we have a potential buyer (but obviously won't know until they have viewed)

 

I can say that benefits are willing to help towards mortgage payments, and I will try to pay towards arrears (but as yet, Kensington have not returned the MI12 form, so cannot advise them how much help we can get??).

 

 

How (having never done this before) do I appeal against the decision.

 

Thanks again for all the help and advice. I'm willing to give it a fight, but need to be pointed in the right direction I'm afraid.

 

The link to entitledto was very helpful.

 

thanks again

 

Taz11

[Taz11]

I intend to put together a letter today to the solicitors as I'm sure they are unaware of any proposals I have forwarded to Kensington:mad:. Would appreciate any feedback on it if I post it on here. It might not make any difference but its worth a try

 

Jansus could you please advise if this is still part of the protocol, as I couldn't see it in the link you posted.??

 

6) Possession proceedings for mortgage arrears should not be started against borrowers who can demonstrate that they have –

(a)

provided the Department of Work and Pensions with all the evidence required to process a claim for payment of mortgage interest or provided any Mortgage Protection Policy Insurer with any claim for payment under such a policy;

 

thanks

Taz11

Edited August 23, 2009 by Taz11

[jansus]

I think we need Ell-enns help on this. I am not sure if there is a later protocol but I have checked direct with the site and it does not appear to say that. But I am sure I saw something recent on another site.

 

 

I think if I was in your position I would do as you have said .

 

in the letter refer to the protocol - send a copy if you want and say

 

1) We believe you will be able to mantan a payment of XXX but we are still awaiting completion of the form xxx before we can confirm and that you the lender are delaying progress in that area.

2) We would be able to maintain payments plus an amount towards the arrears if you the lender would give permission for us to let the proprty for 12 months. We are taking advice from local letting agents in that respect.As you know the court asked for your decision in this respect and we await your reply

3)We are also taking professional local advice as to the current value of the property in order to consider a sale. This would be our last option as we feel that letting the property would allow us time to find gainful employment and for the house to regain value.

 

 

We feel that you Kensington are youreslves delaying our ability to pay by not completing the relevant forms required by the DWP and giving us the decision requested by the court and request your urgent reply by return

 

 

or words to that effect - you can send a copy to the court to put on file and the FOS if you decide to complain .

 

you can pm Ell-enn about your question above

[jansus]

this was the other link and its not mentioned there either

 

The Law Society - Mortgage possession claims

[Taz11]

Thank you Jansus,

 

I will put a letter together with the help of your sentences above. I did find the required protocol, but not sure if it still in force.

 

Its at the start of page 15 on this link.

 

http://www.civiljusticecouncil.gov.uk/files/mortgage-pre-action-protocol-final290208.pdf

 

 

Do I need to make the solicitors aware that I intend to complain to FOS due to the lack of protocol procedure by their clients???

Edited August 23, 2009 by Taz11

[Ell-enn]

Hi there, include this paragraph in your letter:

 

"I am sure you are aware of the Civil Justice Council Consultation Paper – Mortgage Arrears Protocol whereby lenders are required to give positive assistance to customers who are in financial difficulties and who are asking for help. However, despite our numerous requests for you to consider our alternative proposals to repossession, you have failed to respond".

 

Ellx

[Taz11]

Thank you Ell-enn,

 

I am just in the middle of typing it now. I'll post it up and feel free to pick it to bits...lol

 

regards

 

Taz11

[Taz11]

Ok, this is what I have directed at Moore Blatch Solicitors, as they are the ones who have asked for proposals towards paying the arrears. Please feel free to edit where you think necessary.

 

Should I add I intend to complain to the FOS, and given the proposals put forward by us, can and how do I appeal to the court if we receive help from the dwp and can resume payments.

 

Thanks for all the help and advice.

 

Taz11

letter to moore blatch possession2.pdf

[Ell-enn]

Hi there, you've certainly covered all the points you need to make

However - where you are quoting 6.2, 6.3 and 7.1 from the Protocols you need to insert before these points " taken from the Civil Justice Council Mortgage Arrears Pre-action Protocols", otherwise it looks like your numbering has gone wrong.

 

Make sure you send by recoreded (or special delivery) and keep a copy.

 

If and when you receive an eviction notice, you can enter an N244 at court to ask for a hearing to suspend the eviction - we can help you with that. The letter (and any response) will be needed for the application.

 

Ell-enn

[Taz11]

Hi Ell-enn,

 

Thanks so much for getting back to me. I'm quite pleased the letter all seems ok. I'll add the parts you have quoted and re-post it. I always send recorded, and I'm enclosing a copy of the post office receipt of the MI12 form sent and also a print out of the delivery receipt.

 

I also intend to send a copy to the Service Quality Manager at Kensington, who, in their .pdf file state that they will try every opportunity to help before repossession.......I think not in this case..:-x

 

http://www.kmc.co.uk/KMOnline/Customer/PDFs/Help%20for%20Customers%20in%20Arrears.pdf

 

 

Thanks for any advice on the N244 Ell-enn, this is where I am lost???. Do I actually wait for an eviction notice before sending it??......as this seems a very close call if I lose

 

Is this better?

 

Am I right in thinking they must reply in 10 days?? to any proposals??

letter to moore blatch possession2.pdf

[Ell-enn]

I'd wait at least a week to see what reply you get to the letter. At the moment you haven't got much more to tell the court than you did at the hearing.

 

Ell

[Taz11]

Ok Ell,

 

thanks so much, I'll post these tomorrow recorded. My wife is so worried, more for the children than anything else and where to go. We are looking to see if we could rent private as benefits have already advised us how much we would get towards renting. Given that it may be resolved???, I'm not sure if its right to go down this route if we can keep our home until a possible sale and the market picks up. I'm not going down without a fight though

 

thanks once again for all your help and advice.

 

If I get anything from this, I owe a lot to you and other members who have been so helpfull with my present situation.

 

I'll wait for any replies and get back to post.

 

Taz11

[Taz11]

Hi Ell-enn/Jansus,

 

I hope you are about to give me a little more advice. The court last week told the solicitor that my mortgage company needed to inform me within 7 days if they would send accept a rental proposal. 7 days is up tomorrow (if you include weekends). As luck would have it, we have approached a letting agency, and a tenant has viewed today and wants to move in a month. The rental would cover the MP and a small amount of arrears. Where do I go with this with regards to informing court/mortgage company etc...., in an attempt to get the 28 day order lifted........and have a tenant for a year, which in turn means the property market may lift, it would still be our property, and we could possibly sell at a later date.

 

 

Alternatively I had confirmation from the benefits office that they had received the MI12 form, they asked for some more information, which I have sent them and awaiting the result of the claim??

 

I'm assuming this can only be all good, but don't know how to approach court with the proposals. At this point neither Moore Blatch or Kensington have replied to my above letter which was sent recorded delivery to them.

 

Any advice as always appreciated.

 

thanks

Taz11