Outright Possession Order - Repossesion Prevention Fund Information - Pregnant!!

[littlemonstersmum]

I submitted the N244 form a while ago and we were given a date of 26th September for a court hearing requesting the possession order to be set aside. We have heard nothing from our lender until today. They have sent a letter via their solicitor (Shoosmiths) stating that if we go ahead with the court case they will defend it as clearance of the arrears and maintaining full monthly payments is not a reason in law to have the order set aside. They claim that should we default again in the future they want to be able to rely on the possession order that is in place.... The main body of the letter is as follows:

 

'at the time the possession order was made in April 2010, the arrears on the account were in excess of £6000. The possession order was validly made and payment of arrears and/or capitalisation of the arrears is not a legal basis to set aside the possession order. The possession order remains valid. This position is well established in law.

We can assure you that our client has no intention of enforcing the possession order whilst your account remains up to date. However, in the event that you default on your mortgage payments in the future, our client is entitled to rely on its existing possession order rather than issuing new possession proceedings and incurring further expense. Of course, our client hopes this will not be necessary and that your account remains up to date.

In view of the above, we do not consider that your application will be successful. In addition, our client is contractually entitled to add any costs in dealing with the application to your mortgage account.

In view of the above, our client invites you to confirm as a matter of urgency, your agreement to withdraw the appplication to set aside the possession order and vacate the hearing listed on 26th September 2011. Please confirm by no later than 19 September if you intend to withdraw your application. If you still wish to proceed with the application, our client is likely to instruct us to file and serve a witness statement in response to your application and attend the hearing which will incur further costs.'

 

What i need to know is how likely are we to win our case and get the possession order set aside? This letter feels like they are trying to threaten us and frighten us into caving in and backing down on our application. Obviously we don't want to have additional costs added to our mortgage account should they defend and win but at the same time i cannot see how they can still have the possession order if there are no longer any arrears on the account.

 

Please can someone advise ASAP so i can decide what our next move should be. Thank you

[Ell-enn]

It's a difficult one - in theory if there are no arrears on the account and you have maintained payments for a reasonable period of time then realistically the suspended possession order should be lifted. Might be a good idea to book a free session with a local solicitor (lots of them do these) just to get a perspective on your chances of being successful.

 

Suspended possessions orders are granted to delay possession while arrears are being repaid - the arrears have been repaid by way of the lender capitalising them - but best to get a legal opinion I think.

[littlemonstersmum]

Thank you Ell-enn. I was hoping you might be able to be a bit more optimistic! What do i need to ask for from a solicitor in regards to free session? In theory it should be easy to answer the question but in practice it never is!!

[Ell-enn]

Have a look in your local paper or yellow pages for solicitors that advertise free advice sessions - they sometimes do them on specificate days and times.

[littlemonstersmum]

Well we went to court today and the possession order was NOT lifted. We spoke to the agent for Bank of Scotland before the hearing and she was really sympathetic of our case but did say that she had to act on the lender instructions and was going to press for the order to remain in place. The judge certainly seemed to want to lift the order but unfortunately there is a case that has been to the court of appeal where an order was not set aside and he had to go with the judgement on a previous case as his guide. At one point we thought he was going to set aside our order but then he said he couldn't do it.

 

On a positive note he made it very clear to the agent that under no circumstances were BOS to act on the order as long as we maintain payments and do not get into arrears again.

 

So although it isn't the outcome we wanted provided we don't get behind again i think we will be ok. Not sure how to proceed with regards to bankruptcy now as this is why i wanted the threat removed. I am hoping that as the house is in negative equity the OR will not have any interest in our house.

 

Interestingly the agent did advise us to look into the charges that have been made on our account and look to trying to get some of them back! On a personal level we felt both she and the judge were on our side. Sadly on a professional level this was a different matter but at the end of the day they were both just doing their jobs.

[babybear39]

Did the judge mention which High Court case caused him to follow precedent? I would asume that Shoo what's ya ma boomin' call them would know and the sneaky gits should have told you

 

Congrats on the baby and keeping your house.

 

Not in a position to help re: BR as I didn't own property.

[littlemonstersmum]

Following the court case where we did not get our possession order lifted the mortgage lender has now sent us a bill for the action (as expected) and it is over £800 I was expecting it to be hundreds, but more like 3 or 4 not 8!

 

Now i want to challenge this and all the other previous fees and would appreciate a template letter in order to be able to do this. I have had a quick look on the site and not found one as yet. I will look a bit harder but in the meantime if anyone can be kind enough to provide me a template/link to one i'd really appreciate it. Thank you.

[Ell-enn]

Hang on, I've got a template letter for mortgage charges somewhere .....

[Ell-enn]

Sorry, it's on my pc at work - if you can wait till Monday I'll post it on here ?

[littlemonstersmum]

Thank you Ell-enn that is fine. I have been reading round other people's stories and tbh i can't deal with any more of it tonight so am just going to do my best to forget about it until Monday. Hopefully i will feel a bit more like battling by then!

 

Haven't dared tell my husband about the new charges yet. Want to wait to see if there is any chance of getting some of the money back first! I assume that if we can get some of the fees refunded they would just get taken off our mortgage balance?

[newstarter]

Littlemonstersmum im amazed that you didnt get the order lifted.I had no trouble getting mine lifted,ok i did have to argue the case a little as this b**ch of a solicitor argued black and blue it should not be lifted due to previous payment history and so on,but her toys were soon thrown out the pram(as is the case when a layperson gets one on the backfoot) when i argued that 12 months of regular payments,no arrears,showed him the statements to prove it,order lifted,simples.Makes me think that the result you get in court is a lottery dependant on where you live,what mood the judge is in and most of all how much money you have (or do not have) to instruct these ever so clever scholars on your behalf.The legal proffession is just so far removed from the real world it beggars belief,chin up and soldier on.

[littlemonstersmum]

Newstarter i used the same argument as you and the judge did seem to take on board what we were saying but because there was a case in the court of appeal where a possession order was not lifted the judge had to go with the precedent set by that. I really don't know what the next course of action is because we certainly don't have the money to fight it out or instruct a sh*t hot solicitor. I would love to appeal but my understanding is that it goes to a higher level and i'm sure would cost a whole load more cash that we just don't have.

 

I don't know the case the lender's argument was based on but we didn't get to see their defence until just before we went in so obviously had no time to look up a counter argument. I must admit i (wrongly) assumed that to get the order lifted would be fairly easy based on the fact that we had cleared the arrears and maintained payments but as you so rightly say the legal profession and the real world are poles apart.

 

When did you get your order lifted and who is your lender?

[Lea_HTH]

Newstarter i used the same argument as you and the judge did seem to take on board what we were saying but because there was a case in the court of appeal where a possession order was not lifted the judge had to go with the precedent set by that. I really don't know what the next course of action is because we certainly don't have the money to fight it out or instruct a sh*t hot solicitor. I would love to appeal but my understanding is that it goes to a higher level and i'm sure would cost a whole load more cash that we just don't have.

 

I don't know the case the lender's argument was based on but we didn't get to see their defence until just before we went in so obviously had no time to look up a counter argument. I must admit i (wrongly) assumed that to get the order lifted would be fairly easy based on the fact that we had cleared the arrears and maintained payments but as you so rightly say the legal profession and the real world are poles apart.

 

When did you get your order lifted and who is your lender?

 

In your original post about going to court you used the words 'set aside' - and if that was the argument you put forward to the judge, you were never going to win, because, as the mortgagee rightly pointed out, the original order was correctly given (i.e. you were in arrears and a suspended possession order was granted on the basis that you would pay according to the terms agreed). If, following a suspended order, the arrears are cleared by repayment (usually NOT capitalised), and the payments are maintained for at least 6-9 months with no late payments or further arrears accrued, then a court will remove the suspended order. They are not for use to continually beat someone over the head with - they are there to secure repayment of any arrears and once those arrears are repaid, there is no reason to maintain the order, so courts lift them - they are not set aside (which means something entirely different).

 

So, perhaps the answer lies in what you asked the judge to actually do - remove the order now the payments had been made, or set aside the original order. As indicated, he had no power to set aside the original order if it was correctly ordered in the first instance.

 

It would help to know what case law you are referring to - do you have a copy of their defence?

 

As regards the legal fees, unfortunately, challenging those is going to be a bit of an uphill struggle. It is not like reclaiming other charges levied on a mortgage account. The legal fees are, generally, very easily justifiable - and you contract to pay their legal fees. There are few courts who will interfere with a contractual term, unless it is deemed to be manifestly unfair on one party. You can definitely ask them to provide you with a breakdown of the fees charged on this occasion, realistically speaking, dealing with a hearing like the one you had should cost no more than around 5-600 quid, it doesn't take any time whatsoever to prepare for, and is largely made up of attendance fees, and most solicitors use agents, which are fixed fees...though they can recharge that to you at full fees.

 

Ask for a breakdown, and when you get it, post it up here and I will see if I can point you to anything that seems unreasonable.

[newstarter]

Yes you would be talking 8k rather than 800,it makes me so angry that fair play in the legal proffession is reserved for those who have the most money,Joe public just doesn,t stand a hope in hell,lets face it have you ever known a poor solicitor?.My mortgage is with B.M but the order was lifted going on for 5 years ago now.i would have asked for a posponement to look over what she had.There has been many threads on the C.A.G where the lay person has been given time to do their research and come back to court either later that day,or the following week.The repo order expires after 6 years,i wouldnt chance an appeal it could cost you a fortune,it wouldnt hurt to do some research regarding the case in the court of appeal though.

[newstarter]

I have to agree with the above,you really do have to be clear concerning what you are asking for littlemonstersmum but it wouldnt have hurt someone to have at least pointed you in the right direction.

[littlemonstersmum]

In your original post about going to court you used the words 'set aside' - and if that was the argument you put forward to the judge, you were never going to win, because, as the mortgagee rightly pointed out, the original order was correctly given (i.e. you were in arrears and a suspended possession order was granted on the basis that you would pay according to the terms agreed). If, following a suspended order, the arrears are cleared by repayment (usually NOT capitalised), and the payments are maintained for at least 6-9 months with no late payments or further arrears accrued, then a court will remove the suspended order...

So, perhaps the answer lies in what you asked the judge to actually do - remove the order now the payments had been made, or set aside the original order. As indicated, he had no power to set aside the original order if it was correctly ordered in the first instance.

 

It would help to know what case law you are referring to - do you have a copy of their defence?

 

Thank you for your response. I wish i had this info before i filled in the court paperwork. I did ask on here but i guess the right people weren't around to answer! I know the order was granted fairly (based on our arrears but not on the way we were treated by our lender although that is another story entirely). So we should have asked for the order to be lifted then? I'm not going to fight it any more now as it would just be a waste of money we simply don't have.

 

I shall certainly be asking for a breakdown of the legal fees as i think they are excessive. We had one letter from the lender's solicitor before the hearing and they sent an agent on the day. When i asked her she thought the fee would be around £200 which sounded low but £800 seems very high. I understand they can pass the fees on and was fully expecting it but like i say these seem to be too much. I am wanting to claim back the charges levied on the account in the past and will ask for legal fees to be considered as well.

 

I don't remember the case that was referred to but i will see if i can find out about it. Yes we probably should have asked for a postponement but if we were never going to get the possession order set aside then i guess that is immaterial now. We never had a copy of the defence before the hearing and were only shown it briefly on the day. The agent claimed she only had one copy so couldn't give us one...

[Lea_HTH]

Thank you for your response. I wish i had this info before i filled in the court paperwork. I did ask on here but i guess the right people weren't around to answer! I know the order was granted fairly (based on our arrears but not on the way we were treated by our lender although that is another story entirely). So we should have asked for the order to be lifted then? I'm not going to fight it any more now as it would just be a waste of money we simply don't have.

 

I didn't read your post before your hearing, or would have made reference to the incorrect claim being made. People who give advice on here do a sterling job (Ell-enn in particular) and really cannot be expected to know everything. Ell-enn did in fact make reference to getting the SPO lifted, which was absolutely correct.

 

Your lender should have followed pre-action protocols, but unfortunately that is an aspect that needs to be queried at the initial hearing.

 

I think it would be a waste of money to try to fight any further. The SPO will eventually run out (six years), so if you maintain your account then nothing will ever happen. That said, I think once you have maintained the account for a year, you should apply to have the SPO lifted - there doesn't seem to be any logical reason for the mortgagee to want to maintain it if there have been no further accruing arrears on the account during that time frame. I realise they think it means they don't have to start proceedings again, but I don't know a judge who would not look down on a claim brought after a lengthy period of no arrears...you'd easily get a stay on any warrant so long as you could show affordability ongoing.

 

I shall certainly be asking for a breakdown of the legal fees as i think they are excessive. We had one letter from the lender's solicitor before the hearing and they sent an agent on the day. When i asked her she thought the fee would be around £200 which sounded low but £800 seems very high. I understand they can pass the fees on and was fully expecting it but like i say these seem to be too much. I am wanting to claim back the charges levied on the account in the past and will ask for legal fees to be considered as well.

200 quid would definitely be too low - 800 is a bit high, but they had to file an actual defence, so it might be justified. Wait until you get the breakdown and then post it up and I can have a look and make further suggestions.

 

I don't remember the case that was referred to but i will see if i can find out about it. Yes we probably should have asked for a postponement but if we were never going to get the possession order set aside then i guess that is immaterial now. We never had a copy of the defence before the hearing and were only shown it briefly on the day. The agent claimed she only had one copy so couldn't give us one...

A 'postponement' wouldn't have been applicable - a) the terminology is incorrect - postponed would refer to the possession order itself, and b) the claim was yours - it's rare to get an adjournment (the correct terminology) on your own claim on the day of the hearing. You could have raised the issue of not having seen the defence until you came into the hearing, but given that it was actually accurate, seeing it would not have made a material difference. I am fairly certain that if it had been defensible, then the judge would have ordered an adjournment in order for you to file a response. It is wrong for any party in a hearing not to file and serve anything they are seeking to rely on in court on the other party - having only one copy is not an excuse for not providing you with one. They ought to have gone to the court office and paid for copies. Judges often ask for copies so they have one for the file.

 

You are free to contact the mortgagee and ask for a copy of the defence they relied on - they HAVE to supply this to you...you could also ask the court for a copy if they have one on file (which they ought to).

Edited October 29, 2011 by Lea_HTH
added a bit

[newstarter]

Yes, that thats what i requested littlemonstersmum,if you dont get all the facts and the termonology exactly (and i mean exactly) right then to be honest its not worth even walking into court.Having said that the judge would have known what you wanted,it would have been obvious that you wanted the order removed,i never had a problem and neither should you have done.No wonder the other side,s solicitor was full of concern and being very nice to you,it was a done deal before you even got in front of the judge and you have had to pay out what for the likes of us is a lot of money.It wouldnt have hurt just to clarify your position in terms of what you were applying for on your behalf,lets face it you were not asking for the world were you,but no,the courts seem to have little time for the likes of us,after all its only our home isnt it.