Abbey SPO - want to set it aside

[tifo]

Under s8 Administration of Justice Act 1973 in exercising the powers under s.36(2)(b) the court only has to consider the sums payable in arrears not any term which may render the full amount repayable.

 

What amounts to a reasonable period will depend on the circumstances of the case and can include the whole remaining term of the mortgage as occurred in Cheltenham & Gloucester v Norgan. This case also stated the factors the court will take into account when deciding what is reasonable:

 

Ability to make payments now and in the future

Likely duration of financial difficulty

Reason for arrears

The period of agreement remaining

 

So basically if you can show you can pay off the arrears over the remaining period the court will not order possession.

 

I'll probably pay off the arrears off before the hearing (£1200) but i am worried that their claim states 1. possession or 2. pay the whole mortgage amount of £53k. My property is worth around £230k now. But the solicitor letters states court claim issued because of the arrears.

 

Would it be helpful to inform the court that i have made many charges claims and it is not my fault some have been put on hold and the rest the FOS are allowing the banks far too much time (6 months now in some cases) thus holding up around £6,000 of refunds due to me? Also that the FOS have recently made a decision to allow Marbles to keep my £2,900 despite me settling the account in 2004 which is an ongoing investigation now?

 

What they've done is jump too quickly. With my charges refunds i've had, i've been repaying my debts to friends and family and in some cases banks and have always kept my arrears within 3 months as that is the limit when they push for a claim. This month i was a few weeks late in paying so it took the account over 3 months (they've been charging £35 pm for a long time now so that don't help) and the bank issued a claim as on this thread.

 

It's not easy trying to juggle all of one's obligations especially when the consumer is being screwed left right and centre.

[Bona]

if you are not in arreas you are not in breach of your mortgage, but I supose once you ahve paid it off you could write and ask them if theyare breaching there contract in persueing you for the oustanding amount of your mortgage . I think it is a technicality

[rory32]

The following may be of some use in understanding your position The K-Zone: Mortgagee's power of possession Law of Property-Keep out!

[tifo]

if you are not in arreas you are not in breach of your mortgage, but I supose once you ahve paid it off you could write and ask them if theyare breaching there contract in persueing you for the oustanding amount of your mortgage . I think it is a technicality

 

Yes, i know they may have a difficult case after i pay arrears off, but then with this credit crunch and lenders tightening their belts, i am slightly worried they may decide i am not worth as a customer anymore.

 

Possible?

[tifo]

The following may be of some use in understanding your position The K-Zone: Mortgagee's power of possession Law of Property-Keep out!

 

Thanks rory, very interesting and informative articles.

 

I read that the bank may possess a property anytime they like even without a court order (in my case they have gone to court) and that the court will look at allowing the debtor to correct the default (arrears) within a reasonable time if a court order is seeked.

 

Therefore if i pay the arrears there is no more breach of contract and the bank have a diffucult case for possession, especially as i have small children (under 10).

[rory32]

I read that the bank may possess a property anytime they like even without a court order

Unless the mortgagor is in residence, which you are.

Therefore if i pay the arrears there is no more breach of contract and the bank have a diffucult case for possession, especially as i have small children (under 10).

I would be very suprised if they have any case at all. However, you must get qualified legal advice on your situation. I would suggest that you either contact your local law centre (who offer free qualified advice) or your local CAB who should be able to recommend a solicitor that will give you a free initial consultation. National Debtline may be able to offer you some help and advice as well Tel: 0808 808 4000.

[tifo]

also received a copy of a 'possession notice' in the post.

 

they have a notice that the judge can either suspend on making agreed payments to clear off the arrears (as has happened previously) or go ahead with it.

 

in addition they have issued the claim which is for the same thing.

 

is this normal?

[tifo]

as i said before, they have been charging me £35 pm everytime i am in arrears (sometimes for 6 months at a time) and maybe charges for letters they send.

 

they have sent me a full statement of account as part of the claim so i can work out exactly what they have charged me.

 

these are penalty charges i am talking about, NOT litigation charges which i know they are allowed.

 

i am in a dilemma. Shall i pay the arrears (i can do so before the hearing) but also put in the defence that i want to claim back charges (saves having to do it seperately) or shall i claim charges back as a seperate claim (which may get stated) or shall i not pay the arrears and claim charges in the defence?

 

the charges refund will be more than the arrears.

[Bona]

Pay the arreas if you can make sure it is cleared then go to the court and ask for the case to be dismissed and or ask the DJudge to make an order that they account for the money they have made you pay ie the penalty charges. you can say you have paid it because you want to keep your house but you believe that they have no right to do this and you would like that money returned to you , its an odd way round penalty charges but you have nothing to lose

[WendyB]

Or if they won't pay it back, could it be offset against the remaining capital on your mortgage, which would then bring the interest on the mortgage down as well, which could then in turn make your payments lower, and ease your financial situation? As Bona siad, its an odd way round penalty charges, but worth a try?

[tonycee]

i am in a dilemma. Shall i pay the arrears (i can do so before the hearing) but also put in the defence that i want to claim back charges (saves having to do it seperately) or shall i claim charges back as a seperate claim (which may get stated) or shall i not pay the arrears and claim charges in the defence?.

 

Pay the arrears off immediately and

1 Stop putting you home at risk.

2 Stop incurring hundreds of ££££££££ in litigation fees.

 

Treat them as 2 completely different subjects.

 

There is a chance that you might not get your charges back ever.

You have to prove that they are unlawfull.

 

You COULD lose your house in the meantime.

 

Good Luck.

TC.

[Bona]

I agree pay off the arrears and go to court being able to say that all the arrears are paid yu dont agree with them but you have paid them you couldnt be in a better position to ask for a breakdown of how they were made up

[WendyB]

Definitley pay off the arrears, if and when you get to court the Judge would look on this favourably. This is what happened to us about ten years ago, because we had been making an effort to payy off arrears on a weekly basis and never missed a payment, he ordered that we should carry on, and gave us 3 years to payy. paid it off in 18 months and that was that.

[tifo]

OK, will be able to pay most if the arrears but not all. There'll be a few hundred left over.

 

If they get a possession warrant, they will be able to get an eviction notice. I would then be able to pay the rest off before then anyway.

 

I've had a warrant suspended a few times before over the years and then the bank have issued it and an eviction notice due to a few late payments (they're quick!). I've simply gone to court and got the notice cancelled and made an arrangement or paid the whole amount.

 

I am 'ill' at the moment and am barely limping, not able to stand or walk due to some problems i have. I have a record at the docs for this running a few years now.

 

Case is tomorrow. Can i call the court to cancel and say i am too ill to attend or shall i go, but limp there and back? What is the procedure in this case? It's a joint mortgage but Mrs ill as well with flu, plus a baby under 1 to look after, so she can't go anyway.

 

Advice please as i'm making the payment today or tomorrow. Bank solicitors are bar stewards so no use asking them.

[Bona]

You must go and you really need to make payment today and take the proof with you tomorrow you also need to tell them when you can pay of the rest they should then suspend the warrent .

Good Luck

[tifo]

talked to solicitors, they agreed 75% part payment and the rest to clear within 6 months, then they didn't agree, then they did, then they said see tomorrow with our rep, then they said see the judge, then they said we need to ask the bank, if i talk to the bank they tell me to see solicitors ....

 

couldn't make up their mind really ....

[Bona]

Make a note of what was said also be careful before these solictors have a habit of talking to you brfore the hearing you tell them things and then they use it against you in the hearing DO NOT TRUST THEM howeve nice they seem to be

 

Good Luck

 

Good Luxk

[jansus]

Hope your case is going your way. Best of luck Jan:)

[tifo]

back from court.

 

made a cash payment of £1400 which left about 1.5 months worth of arrears. Tried all of it but just had some work done to house which was booked a long time ago with installers so had to pay them a few grand.

 

bank withdrew the case as they cannot/won't issue possession for less than 3 months arrears. I knew this before which is why i keep it within 3 months if it ever happens, but last time got caught out by solicitors quick to issue (a few days after it went to 3 months). I'd paid off a loan to a friend that week and thought i'd pay the mortgage a week later.

 

judge was nice guy (had him before for other cases) and said good job, you obviously made an effort, well done. I think he wouldv'e let me pay by installments had i not paid such a large amount off the arrears.

 

let the bank rep know that i am aware of the charges on the arrears as well as previously and they'll be getting my letter soon.

 

thanks all for your support.

[tifo]

Am i right in thinking that mortgage charges such as monthly arrears charge, letter fee, late payment charge etc can also be claimed back as a penalty charge in the same way as other bank charges?

[Penfold92]

hi,

 

This is apparently the case, but I have yet to find a comprehensive thread on this...If you do please let me know.

 

I did look into it with my mortgage lender, however, it was so little I did not want to take the risk of going to court, but I am sure I could have...

 

Penfold

[zootscoot]

We have a whole forum dedicated to mortgages here

 

[tifo]

this one has reared it's head again ....

 

have had a few arrears in the last few months due to changing jobs etc. so solicitors issued claim again (they're very quick).

 

Hearing was on 8 May which i could not attend due to being ill and hence immobile for that week. Adviced the court and a note was put on stating this for the judge. Asked the solicitors to adjourn the hearing for a few weeks and they refused. Informed the court i had asked them. Was advised by the court staff that the judge should adjourn it as they normally would in this case.

 

Judge decided not to adjourn and to issue warrant for possession stating to pay full amount of mortgage (around £55,000). Court claim was issued because of arrears (some £1,000). Date of 5 June to leave house.

 

I spoke to solicitors before when i asked them and they said they would only ask for the arrears to be paid even if the warrant was issued, as has happened previously. Therefore i was not expecting it to state £55k!

 

Should i apply for a set aside as i am paying the arrears off, therefore no claim?

 

Advice please ....

[tifo]

Order states :

 

1. The defendent give the claimant possession of {house address} on or before 5 June.

 

2. This order shall not be enforced without leave of the court.

 

and it is adjudged that

 

The clamant recover against the defendent the sum of £55k.

 

It is ordered that the claimant pay the sum of £55k to the claimant in full by {no date given}.

 

The court has ordered that you leave the property by the date stated in paragraph 1 above.

 

If you do not do so, the claimant can ask the court, without a further hearing, to authorise a bailiff to evict you. In that case, you can apply to the court to stay the eviction.

 

I've been at this stage (eviction notice and date) before and either gone to court and paid a large percentage of the arrears or the full amount and eviction stopped.

 

Therefore what does the 5 June date and amount of £55k mean, compared to arrears of £1k which are/will be paid by then?

Edited May 22, 2008 by tifo

[jansus]

You may be pushing them too far . Each time you get the get hearing it sounds as if the possession order is just suspended .

 

If you can pay the arrears why let it get this far?

you are incurring court costs and solicitors costs each time that are added to your mortgae and then you are charged interest on those fees?

 

If the Abbey take your house you will have lost control of the situation totally and they may sell the house for much less than you would have sold it for - you will be liable for any fees and any shortfall?

 

I am not an expert on court orders I suggest you contact either the solicitors or the court to check your position very quickly.