Abbey SPO - want to set it aside

[jansus]

Possible Outcomes of a Court Hearing

 

In court the judge will decide to grant one of the following:

Best case scenario

 

 

• The case is dismissed. If you have come this far it is unlikely the case will be dismissed. But this could happen if your lenders have not followed the correct legal procedures.
  

Your home could be repossessed but there is a chance to stop it

 

 

• The matter is adjourned until a later date, when all the information is available, so that the court can make a decision. Another court date will be decided.
  
• The possession order is suspended. This means that the order is granted. However, the court feels that you are likely to repay any arrears within a reasonable time. If you do not maintain the repayments towards the arrears then the lender can obtain an eviction warrant without the need for a court hearing. This means that if you are having difficulty keeping to the payments ordered by the court you should seek further advice as soon as possible.
  
• Possession is postponed. If you can convince the court that at a future date you will be able to pay the arrears in full and continue making normal payments, the granting of the possession order may be postponed to a later date.
  

Worst case scenario

 

 

• The possession order is granted. If it is clear to the court that you are unable to repay the arrears and are unlikely to do so within a reasonable period the order will be granted. The court will notify you of the period within which you must leave the property. If you continue to stay in the property after this date then steps will be taken to evict you.
  

Back to How Repossession Works

[jansus]

How Possession Orders Work

 

• Possession Order in 28 days.
   
  The order becomes enforceable 28 days from the date of the hearing. If the property is not vacated after this time the lender can apply for a warrant of eviction.
   
   
  
• Possession Order in 28 days suspended on payment of the Current Monthly Instalment plus £100 per month towards the Arrears. First payment by 1st February.
   
  Even if no payments are made the order is still not enforceable for 28 days. As long as payments are made by the 1st of each month the lender can do nothing to enforce the order. However, after 28 days the lender is entitled to enforce the order as soon as one payment is missed or a payment is late. If the monthly instalment goes up the borrower still has to pay an additional £100 each month. A borrower can always pay more than ordered but must never pay less.
  

If payments due under a suspended possession order are not maintained, the lender can ask the court bailiff to evict the borrower without another hearing and without warning the borrower of their intentions. The reasoning behind this is that the borrower must be aware that they have breached the terms of the order and, therefore, risk being evicted. If a borrower is struggling to maintain the payments they should immediately talk to their lender, explain their difficulty and see if some agreement can be reached.

 

 

If the lender is not sympathetic it is always possible to apply to the court for another hearing. The borrower can ask the judge to reduce the payments required for the order to remain suspended. Judges are usually sympathetic to homeowners but there is the risk that they will interpret the failure to maintain payments as evidence that the borrower cannot afford the mortgage. This again highlights the importance of not agreeing to make payments that cannot be maintained.

[tifo]

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

 

I genuinely could not attend that day (or week) due to illness and asked the court to adjourn the hearing and i will supply a doctor's note or they can check my medical history if they want to. I asked the solicitors to agree to an adjournment and they wouldn't. I did all this a few days before the hearing, as soon as i knew i could not attend.

 

The arrears are/will be paid off before the 'leave' date so there is/will be nothing in arrears at that time.

 

Is it normal to issue the order for the full amount of the mortgage (£55k) as opposed to the arrears (£1k)?

 

The solicitors stated to me that even if they got a possession order they would still only ask for the arrears to be cleared in full. They now can't start demanding the whole amount of £55k can they?

[jansus]

did they confirm that in writing or just verbally?

 

you can not trust the soicitors as far as they were concerned it would be better if you did not attend - and the judge has the final say and he also decided to go ahead without you being there - I suggest that was because as you say you were in this position several times before.

 

I am not being unsympathetic but your mortgage payments must come before everything else . I am not an expert an until someone else comes along I can only offer you my opinion

 

If I was you I would send a recorded letter to the solicitor and Abbey and the court - explaiing again why you did not attend and ask if you pay the arrears in full by 30th May will they suspend the eviction.

 

Ask for confirmation in writing - because if they say no you are going to need every penny you can get

[tifo]

anybody got further advice for me on this as 5 June is nearly here and i haven't got the £55k, even though the solicitors have said verbally they are only looking for the arrears?

 

should i be thinking to apply for a set aside and ask for a hearing again and make a good offer to repay the arrears, or if i can pay the arrears off in full, i should apply for a set aside on that basis?

 

obviously after 5 June they will apply for an eviction order, which is where i have been to in the past and always paid the arrears off in full. No-one has ever asked me to pay £55k even though all the orders in the past have been for that amount.

[WendyB]

Have you written to solicitors/abbey/court as suggested by Jansus above? Its been almost two weeks since your last post - what's been happening/been done in the meantime? Have you paid the arrears off? Have you had any contact from Abbey or their solicitors.

 

Just because you've never been asked for £55k before doesn't mean you won't be this time. In fact you already have been, in the judgement above. Unfortunately, I think you should prepare for the worst. If you haven't already done so, then you should contact the solicitors and if they agree to just the arrears, then get it in writing that this is agreed and ask them to tell the courts they are not seeking eviction/withdraw from the case/whatever is is they do in this situation. I'm not an expert on this though, so please get further advice as well. However, I do firmly believe that if nothing is done by 5th June then they can and will send the bailiffs round, with an eviction notice/possession order/warrant, who give you xx amount of time (in my relatives case I think it was an hour) to vacate the property, then change the locks and that's that.

Edited June 3, 2008 by WendyB

[tifo]

how do i set aside a suspended possession order from May 2008?

 

i have arrears charges on the account which i want to claim (i've asked the bank and then the FOS). I also believe some of the legal fees which have been applied over the years are excessive (only ever had an agency rep turn up).

 

i also believe my mortgage may have been securitised and the equitable owner is not the lender. The lender/SPV/Trustee have acted unfairly and have conspired to hide the true facts from me.

 

i've been on a deferred payment scheme for a year and now the bank's solicitors have written asking for the whole amount to be paid or a warrant for possession will be issued.

 

i don't want the whole defence to be set around securitisation but i want to use some aspects of it. I will use the arrears charges as one reason.

 

at the time the order was given, i did not know about arrears charges being unlawful (the FSA publicised this last year) or that the bank had sold some rights and benefits of my mortgage.

 

thanks.

[caro]

This link may give you some info to start you off.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/203298-guide-charging-orders-orders.html#post2214288

[tifo]

anyone please?

[Ell-enn]

Hi, when you say you have been on a deferred payment arrangement, can you clarify please. Have you been making reduced payments? has this already been to court?

[tifo]

the bank has a suspended repossession order from May 2008 and the solicitors say they have now issued a warrant for possesssion (eviction). I've been through this process about 4 times over the past 4/5 years and have always paid the arrears before the date or gone to court and made arrangements to pay mortgage + extra. The solicitors have always sent an agency guy/gal and then charged me around £1,500 in legal fees which the bank capitalised to the mortgage some months later. With arrears charges/fees and legal charges/fees the mortgaged amount has increased from under £50k to nearly £60k and there is about £150k equity.

 

the bank/solicitors allowed me not to pay anything from April 2009 - April 2010 when i asked to join the scheme last year, though they did this informally without anything in writing. This was probably done by their solicitors who were chasing me for payment last year as well.

 

i asked the bank for arrears charges back in Oct 2008 but they never responded. It's now with the FOS.

 

the current arrears include charges which should be refunded and therefore the balance they're asking is wrong. Previous arrears that i've paid as part of proceedings also included such charges and one one occasion legal fees as well.

 

the bank used to charge £35 per month when the account was in arrears (and it was for a long time) but i don't know what their current charge is.

 

all letters to the bank get no response and the solicitors carry on with 'instructions'.

 

the bank/solicitors can do this because they have the house as security and use the T's and C's to make me pay all admin/legal costs and charges etc. This puts me in an unfair disadvantaged position in any negotiations.

 

i want to use the fact that it's been securitised as one part of negotiations but don't know how/why to do this, though it's not something anyone knew about last year. The other main issue is that the arrears and full balance include charges which the FSA has deemed as unlawful and made people aware of it only recently in 2009.

Edited May 29, 2010 by tifo

[tifo]

went to my local Abbey branch so that i can ask them to get the correct department to reply to me.

 

spoke to a lady who said she's an 'expert' on charges and that they can make arrears charges when you don't pay because it's your own fault.

 

she then went on to say that you're stealing from the bank when you overdraw and that they won the court case so can make these charges. I reminded her that was for personal current account charges only and mine are arrears charges on a mortgage account but she said it doesn't matter, we won the case so we can apply any charges to any account since charges are charges. Just shows how much they try to mislead the public.

 

rather than carry on argueing with her as there was no way she was going to change her mind, i said to leave it and i'd drop a letter of for them to send to central operations or wherever it needs to go. I told her i need a final decision letter from them for the FOS and i can't have this if they don't respond. I said i can ask the FOS to request this from them or the FSA under MCOB.

 

the FOS sent the form back asking for info about when i'd written to the bank. It doesn't really matter since i passed the complaint to them many many months ago so 8 weeks are long over. Why not just ask me for the info rather than send the form back and create more delays?

[Ell-enn]

Thanks for your PM. I'm afraid I don't have enough experience of securitised mortgages, but there are a few threads in the Repossession forum from last year/early this year on the subject where people have posted a lot of information. I'll tr and find some for you.

[tifo]

thanks ell-enn.

 

if you have experience with reclaiming arrears charges/fees and excessive (i feel) legal fees at repossession/eviction that will be very helpful. I reckon i have a £5k claim in total.

 

securitised mortgage is another avenue i want to consider but not pursue without being comfortable with it.

 

my last post shows that banks still try and mislead customers with reclaiming all charges and simply quote the PCA test case as a reason not to refund.

[Ell-enn]

The usual process for claiming refund of charges etc, is to firstly make written request to the lender. If you don't get a positive response then you take the complaint to the FOS. The FOS won't usually take on your case unless you have written to the lender and they have refused to refund.

 

I put a letter re charges on this thread http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/260626-reclaiming-arrears-fees.html#post2949491 you can adapt it to fit your circumstances.

[tifo]

The FOS won't usually take on your case unless you have written to the lender and they have refused to refund.

 

As i said before, the FOS want a final decision from the bank but the bank won't respond to anything i've sent them. The FOS should therefore look into it because it's been over 8 weeks.

 

I wrote to the bank initially in October 2008 and then i passed it to the FOS last year but the bank still didn't respond.

 

Meanwhile, they continue to add charges/fees and doing what they like.

[Ell-enn]

Do you have copies of the letters you sent to the bank? and did you send them by recorded delivery?

[cagger80]

As i said before, the FOS want a final decision from the bank but the bank won't respond to anything i've sent them. The FOS should therefore look into it because it's been over 8 weeks.

 

I wrote to the bank initially in October 2008 and then i passed it to the FOS last year but the bank still didn't respond.

 

I would break it down into very simple terms to the FOS that you have made a complaint to Abbey and that it has failed to respond within the given eight week time frame as specified within the DISP (DISP 1.6) section of the FSA Handbook.

[tifo]

the bank has finally registered my complaint and given me a ref no.

 

the solicitor has replied that they have asked the bank to send me the information i requested and that for the charges/agreement/deed the bank will send me a statement and docs and for the securitisation stuff i should check companies house and land registry (but without the issuer/trustee i don't know who to check, do i?).

 

and that they will continue with court proceedings (but don't they know i now have a valid registered dispute about charges/fees on the balance they asking for?).

[tifo]

the bank has refused to refund any arrears charges citing them as fair. This is their final response. I've had the decision reviewed and it remains the same.

 

they've also refused to tell me whether the account was assigned in any way citing commercial confidentiality.

 

so pass to the FOS now?

 

it's clear the FSA considers arrears charges as unfair and has now fined 3 companies for mistreating customers in this way. It's also clear the charges do not reflect any additional costs to the bank since they are compensated by the interest they charge on the arrears balance (as well as the interest on the charges which form part of the balance).

[tifo]

the case has now got to an FOS adjudicator.

 

however, i'm told they can't look at the level of charges (because of the test case on personal current account charges) and that i must have agreed to the charges as part of the agreement and that the FSA saying arrears charges must reflect costs is a matter for their regulation and not the FOS. They consider the charges to be fair (because they are £35 as opposed to between £25 - £80 for others) and in any case do not determine what the commercial charges of a firm should be. They say common law on penalties does not apply.

 

The FOS say they will only look at how the firm treated me whilst in arrears but will not determine whether the charges are fair or reflective of the bank's costs.

 

They say arrears charges are different to credit card charges and more near current account charges (for which the test case exists).

 

what to do? looks like i won't get a fair decision on the charges.

[tifo]

the FOS seems more keen on investigating how the account was run (prob to justify the arrears charges the bank applied and which they say are fair). I'm being asked many questions and to provide documents, some of which go back many years. Some of the questions are irrelevant, such as income details and audited accounts, court documents and to explain why and how the account was run the way it was (which resulted in the charges).

 

also, they're asking me to explain securitisation to them and why i think the bank may not be in control of everything.

 

any advice?

[Blossomandebony]

Hi, Tifo,

 

I applied to the FOS for refund of mortgage charges and got a favourable outcome. How? Well the crux seems to be exactly what you've mentioned in your thread, ie what was the behaviour of the mortgage lender like when you were in arrears?

 

 

This is the interesting part of the fos Adjudicator's judgment which they sent to my mortgage lender, (who then had to either accept the fos's conclusions or send further documentation etc to refute the findings).

 

I appreciate that an account in arrears requires further additional work to maintain it. However, I would expect to see evidence of this. Further, where it is clear that an individual has attempted to make payments and maintain them, then I believe it would be unreasonable to continue to levy charges.

 

This is just part of the 3 page conclusion the FOS made in my case.

 

Remember, even if they initially refuse your claim, you can disagree with their conclusion and ask them to examine it again.

 

The statement above, which states the mortgage lender needs to provide evidence that it costs xxxx amount to maintain an account in arrears, is very important. Has a financial institution ever provided such evidence??? - NOOOO!!!

 

Hope this helps.

 

BAE

[tifo]

thanks bae,

 

the adjudicator initially said they cannot look at arrears charges (which is what my complaint is essentially about) but now says it can be looked at within the overall assessment of fair treatment.

 

their 2009 annual report said that most mortgage related complaints concerned arrears charges and the majority were upheld. I asked why he can't look at my arrears charges if the service looked at these kind of charges for other consumers. He didn't say anything.

[Blossomandebony]

 

their 2009 annual report said that most mortgage related complaints concerned arrears charges and the majority were upheld.

 

This is interesting and will give hope to many people, especially those who don't want to go down the court route. Does the report give statistics about how many mortgage arrears charges complaints were upheld, eg 60 % etc? Cheers.

 

BAE