***Ell-en*** please help urgent advice needed

[web2005]

I remember ELL en bringing up s.36 of the administration for justice act 1970,this had slipped my mind at the time,in the case of B.O.S V Elmes in 98.You see s.36 allows a judge impose a payment plan in which the borrower can underpay as long as normal payments and arrears can be paid off in a reasonable period.If i were you i would use this case law as the central pillar of your n244 defence,along with your own circumstances.

 

Thanks again. You are very helpful. Problem is I have no idea how to put this information or refer to this case best in N244 application. Please help me with this. Sorry for my poor knowledge if I am asking something basic. Thanks

[newstarter]

Right,so what you need to do here is exactly as i did,and wait for the eviction order,you can always ring your local county court or bailiffs office there to check if the eviction notice has been issued,that way your one step ahead,then when you recieve the eviction notice send in your completed n244 defence.A.S.A.P.

[web2005]

I take this is something I can only do after the eviction order? I thought i can fill the N244 in advance on the basis that I qualify for HMS scheme but BM is not accepting me on the grounds that when I come out of the scheme I wont be able to pay normal monthly payment plus towards arrers. My argument is when i come out of this scheme I will be out of fixed rate which is 7.8%. so I will be able to pay normal monthly payment plus £300 towards arrears.

 

This is what Shelter England advised me. Don't you think I should submit N244 on these grounds before actual eviction order. I am nervous once the eviction has been ordered it will be too risky for me and I will end up loosing my home.

[newstarter]

This is where i wish Ell en was here,she,s really good with stuff like this.I have only ever filled in one of these once,mind you i did win so must have done something right.Im assuming you have not done this before so we need to start from the begining,have you got the form in front of you.?

[sillygirl1]

Doing anN244 now is much better than leaving it until eviction or after eviction, you have FAR less chance of getting things done then.

 

BM are not supposed to be judging you on what happens when you come out of the help scheme, they are not judge AND jury on this.

 

I would put in a statement stating

 

BM do not consider my application for the mortgage help scheme to be valid, despite previous evidence of my actual salary....

 

That should put the wind into their sails.

[newstarter]

Right in answer to your last post,that defence seems a little shakey to me and heres why,your relying on convincing a judge that B.M are being unreasonable in not considering you for the the scheme,you only need to go before a somewhat lender biased judge and your up the creek.What you need is some good case law to back up your defence,of course you can include the above in your statement,but dont use it as your central argument,as i wouldnt hold out too much hope.

[Ell-enn]

Hi Web, if you can hang on for half an hour or so I'll help you with the N244 - I need to go and pick up my son.

 

Don't panic, there's always something we can do.

 

Ell

[newstarter]

You see you put your n244 forn into the county court to apply to suspend a court judjement on whatever grounds,you have not got that judgement yet as no application by the lender for eviction has gone before the court.The notice would read ,the court has issued a warrant for possession of the above property.Once you have this you can then apply through n244 for that warrant to be suspended.

[newstarter]

However i would wait for B.Ms next move after you have paid your instalment it may not even get as far as a court hearing,they may well be willing to play ball on this.My advice would be to hold back for the moment,keep the option of n244 in your mind in case they refuse to your proposal,if they dont,use s.36 case law to bolster your defence at a future hearing in the court.Thats the way i would aproach this.

[Ell-enn]

Hi there, I need some info before we go any further,

 

 

1. Is the mortgage only in your name?
   
2. Do you have any children living with you?
   
3. Do you have a statement showing all the payments you have made?
   
4. When you applied for the HMS did you keep copies of the application and did the lender write to you refusing the application?
   
5. Do you have anything to prove your payments will reduce after May 2011?
   

[web2005]

Hi there, I need some info before we go any further,

 

 

1. Is the mortgage only in your name?
   
2. Do you have any children living with you?
   
3. Do you have a statement showing all the payments you have made?
   
4. When you applied for the HMS did you keep copies of the application and did the lender write to you refusing the application?
   
5. Do you have anything to prove your payments will reduce after May 2011?
   

 

Thanks newstarter, Ell-en and others. I much appreciate your help. Ell-en, here is the requested information:

 

1) Mortgage is in joint names with my sister who is married with children and living in rented property. She ha been helping me with £400 towards mortgage payments.

2) no children living with me. I am married with wife but no children yet.

3) All the payments have been made on phone using my debit card. I can produce bank statements.

4) For HMS application I didn't fill or sign any application form. My case was with collections team in BM. Account manager from collections department filled the application form. I sent all the required paper work to them. According to collections department they forwarded all this to HMS team who rejected my application. I received a rejection letter in writting. I am surprised now that why they didn't ask me to sign the application form?

5) My payments will reduce because I will come out of fixed rate deal. When I was discussing this with BM this afternoon, I was told that I am in fixed rate deal till October 2011 NOT May. I was thinking it was 3 years fixed rate and becasue I took this mortgage in May 2008, fix rate will end in May 2011. According to BM although it was 3 years fixed rate but fixed slightly over 3 years.

 

Do you see any hope in my case? Again, I much appreciate all your help.

[web2005]

However i would wait for B.Ms next move after you have paid your instalment it may not even get as far as a court hearing,they may well be willing to play ball on this.My advice would be to hold back for the moment,keep the option of n244 in your mind in case they refuse to your proposal,if they dont,use s.36 case law to bolster your defence at a future hearing in the court.Thats the way i would aproach this.

 

Thanks newstarter. We already have a suspended repossesion order issued last year in June. Order is for the normal monthly payment of £2200 plus £100 towards arrears. I want to apply to court to put aside the issued judgement and allow me to pay £1700 for net few months either under HMS scheme or by considering my current circumstances. Don't you think it makes sense to apply now rather waiting for eviction orders?

[Ell-enn]

Do you have a statement from them showing arrears charges being added to the account?

[web2005]

I received statements from them. not sure if charges are added. I will try to find those statement and get back to you with answer. On the phone when i asked the same question to BM they said no charges have been applied as it will be illegal. Need to check this in the satement.

[web2005]

The latest statement I have is dated 11 May 2010. Statement start date is 11 February 2010. It lists payments due for Feb, March and April. it also shows payments made for these months. After this there is Charges heading but nothing mentioned. Doesn't say anything aobut th charges. It also display Statement close date being 11 May 2010, Account balance:XXXX and arrears: £23,596.09.

 

No information about charges. I take this means no charges applied?

[Ell-enn]

OK, let me think about the best way to deal with this. The arrears are high - even when you have a better paid job and come out of the fixed rate it would take many years to pay them off - even citing the Norgan case, we would need a very good judge.

 

Have you asked them to capitalise the arrears? (i.e. add them onto the end of the mortgage). How many years are left on the mortgage?

[web2005]

I have 22 years left on the mortgage. I haven't asked them recently to capitalise arrears but few months ago they rejected this proposal. Once out of fixed rate next year, my mortgage could be something like £1300 per month. This is what shelter England said that I need to explain to judge that if I pay £1700 for next 12 months, arrears will increase by onther £6000 to £30000. Arrers will increse for next 12 months but next year I can start paying arrears back by making £500 payment towards arrears. This will clear arrears in 5 years. I have been told that resonable time to clear used to be 2/3 years but recently this has been changed to be around 5 years.

 

Do you see this could be ground to make application?

[letsdothis]

@web2005

 

Having been through nearly the same, ie repossession from the same lender, I know exactly where you are coming from.

 

This time last year we had 2 weeks before we were being kicked out of our home. I didn't give up and constantly kept in touch with them. Granted my arrears were half your total though.

 

I found BM quite helpful tbh and they eventually suspended all action and also came to an arrangement, of which I have now managed to pay off the arrears as such.

 

The way I did it was, to pay them 2 months arrears initially, (luckily we managed to get this amount of money together) and then prove to them that I could afford the payments thereafter. Then we had to pay £1000 a month on top of our normal monthly payment, which totalled roughly your £1700 per month. I didn't even go to any court sessions, as my wife hid all the paperwork and tried to deal with it herself.

 

In January this year BM rang me out of the blue and told me that as I had paid 6 months without default, and also 2/3rds of the arrears had been paid, they would capitalise the remaining 1/3rd - I know this doesnt help you at the moment, but there was / is light at the end of the tunnel.

 

Is there anyway you can get them a lump sum to bring the total arrears down? Maybe that would help sway your case.

[web2005]

@web2005

 

Having been through nearly the same, ie repossession from the same lender, I know exactly where you are coming from.

 

This time last year we had 2 weeks before we were being kicked out of our home. I didn't give up and constantly kept in touch with them. Granted my arrears were half your total though.

 

I found BM quite helpful tbh and they eventually suspended all action and also came to an arrangement, of which I have now managed to pay off the arrears as such.

 

The way I did it was, to pay them 2 months arrears initially, (luckily we managed to get this amount of money together) and then prove to them that I could afford the payments thereafter. Then we had to pay £1000 a month on top of our normal monthly payment, which totalled roughly your £1700 per month. I didn't even go to any court sessions, as my wife hid all the paperwork and tried to deal with it herself.

 

In January this year BM rang me out of the blue and told me that as I had paid 6 months without default, and also 2/3rds of the arrears had been paid, they would capitalise the remaining 1/3rd - I know this doesnt help you at the moment, but there was / is light at the end of the tunnel.

 

Is there anyway you can get them a lump sum to bring the total arrears down? Maybe that would help sway your case.

 

Thanks letsdothis. Unfortunatly my arrears are very high and can't arrange to bring them down by paying lump sum. I understand levels of arrears is making my case most difficult and this is my worry that with these much arrears judge will stright away turn down my application.

[newstarter]

Hi Web sorry i couldnt get back to you last night,i was called out.You see i suppose you could go to court and ask for the possession order to be set aside but you would have to show that the order should not have granted in the first place due to whatever reasons,that would be hard to do considering the level of arrears.You can yes but,or what if but if,s and but,s will not cut it with a judge.Remember you are asking to defer normal payments plus arrears payments for another 17 months which already breaks a previous court order,that in itself wont go down well in court,so arguing that you have been turned down for the rescue scheme as your central argument is going to be weak to say the least.

[web2005]

I will call BM again today to get breakdown of arrears. As I metioned the last statment I received listing last 3 months transaction don't show any charges added but I am still not covinced the amount of arrears doesn't include any charges. Currently arrears are at £23596 and my monthly payment is £2200. I have this mortgage since May 2008. To be on this level of arrears means I didn't pay anything for 10 months. I don't think this is the case. Initially I missed couple of months payments but since last year June I have been paying regularly though not full payments. Before last year, I missed payments here and there but it was not like I didn't pay at all for 5/6 months? I will call BM customer support and try to get break down of arrers.

[Ell-enn]

Hi Web, I've given your situation a great deal of thought, and I can't pretend it's not going to be difficult for you to convince a judge that you should keep your property.

 

This is what the judge will consider:

 

Negatives -

Your current income does not support the monthly payments

You are asking to pay reduced payments for another 17 months thus increasing the arrears, not reducing them

You have no evidence that you will get a better paid job

 

Positives -

When you come out of your fixed rate deal your monthly payments will reduce to a level which will allow you to make additional payments to reduce the arrears.

 

The only thing we could pin our hopes on is that the judge will consider the Elmes case law, however you are asking for reduced terms for a long period of time - previous cases have shown the reduced term to be around 3 - 6 months. Alternativel,y prove that you are trying to sell the property - is there any equity in it?

 

What you have to do now is consider whether you should be trying to keep a property that you will be struggling to pay for over the next 17 months, and then be committed to large arrears payments for the next 5+ years (assuming the lender will agree to that and I don't think they will!). I know that's probably not what you want to hear, but we have to be practical. Please give it some serious thought, the £1,700 you'd pay on 27th would go a long way towards a deposit for a rental property and removal costs etc.

 

If you decide to fight to keep the property then I will help you with the N244, but you need to really think about this and be prepared in case the decision goes against you.

[web2005]

Thanks Ell-en. I know I am in difficult situation. There seems to be no way out except selling off the property which I was thinking the last option. Even if I am allowed to pay £1700 for next 5/6 months that would help me to arrange for extra money towards normal monthly payments. During this time I might manage to find a better job or start looking for selling property.

 

I am still curious why I am not allowed in HMS scheme. I believed this scheme was for people in similar situation. Whoever is approved under this scheme for 2 years pay 30% of the interest only. After 2 years they end up with huge arrears.

[Ell-enn]

If you are going to sell the house you need to move quickly and get an estate agent in to value it. If you are to avoid repossession then you will need documentary proof of the house being for sale to show to the judge.

 

You are correct in that you are in a difficult situation -

 

- if you are allowed to pay £1700 for the next 5/6 months - not guaranteed and I doubt it would be accepted

 

- give you time to find extra money and/or find a new job - not guaranteed and you would need proof of where the money was coming from/ written job offer.

[newstarter]

I agree with Ell en on this one web if you think about it,all you may be doing is trying to delay the inevatable.You cannot really enter your n244 form on a judgement that was made a year ago and remember you have defaulted on that agreement,it just wouldnt make sense to challenge the order a year on.You could of course wait for B.M to issue the eviction notice then enter your n244 form using the Elmes case,you could also site Norgen,add to that your own statement,explaining you are in a fixed rate deal with B.M Also add the above issues we have discussed to form your defence pack,then hope to god you get a lender friendly judge.To be honest Web i dont think your chances are great,its a slim chance at best.