Animal vs BM

[Gaston Grimsdyke]

Action won't be dismissed, it will just be transferred. Can't work out why it hasn't been already, or why it was issued at all in the first place in the wrong court. Usually the courts are red hot on jurisdiction and would send it back unissued if the property is not in their jurisdiction. Not an order for sale on a charging order is it? That wouldn't have to be in the court where the property is.

[AnimalMagic]

Nope. Initial repo action. Defended due to charges and wrong amounts on repo forms.

 

Are you saying 'must' has no meaning or significance? Defendant has been disadvantaged over costs etc of travelling to court, both for themselves and claimant's solicitor.

[Gaston Grimsdyke]

Not in terms of getting the action dismissed, but worth a go claiming costs. Or complaining to issuing court for wrongly issuing in the first place. There isn't an identically named town to yours near the issuing court is there?

[AnimalMagic]

No. Only similarly named town is several counties in the opposite direction...

[AnimalMagic]

If a repossession action was started prior to April 2011, but postponed until after april 2011 when the pre action protocol was changed, which version of form 123 is valid for the hearing after April 2011?

 

Does the April 2011 version of the protocol apply in this case?

[AndyOrch]

Hi Animal my understanding the new version is available from September

 

The standard form checklist for use in all cases to which the Mortgage Arrears Pre-Action Protocol applies is in Form N123 which has guidance notes attached.

 

Claimant lenders are required to present two copies of Form N123 when attending first hearings of claims issued after 1 October 2009. The Form contains a number of questions claimant lenders must answer to explain to the court the actions they have taken. The Form also contains a statement of truth; and care should be taken to ensure that it is signed by someone who is able to confirm the truth of the facts stated. In practice, this is probably best dealt with by an officer of the claimant lender, rather than a solicitor agent on the day.

 

Mortgage possession proceedings are governed by CPR Part 55, see in particular Part 55.10 and PD 55A, para 2.5 and PD 55B available on line.

 

Regards

 

Andy

 

 

[AnimalMagic]

The new version is available now by download. I cannot find anything that states which version applies.

[AnimalMagic]

Wondered if anyone has challenged the clause allowing mortgage co to add legal fees to account whether they win or lose? Seems to me huge legal fee is a significant deterrent to claiming back charges, etc...

[Sand-Dancer0191]

I therefore request that any costs incurred by the claimant be disallowed.

(In cases of clear unreasonableness, a lender may not be allowed to add costs to the security (Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1992] 4 All ER 588, CA)).

[AnimalMagic]

I'm trying to understand the consequences of an unconscionable bargain.

 

If a lender makes a remortgage to someone who is clearly in financial difficulty and unable to pay the new mortgage amounts and the court finds it is an unconscionable bargain, how would this be resolved?

 

I understand that the court would attempt to roll back to the start of the agreement, but how would that work when a remortgage takes place? One cannot restore the original mortgage...

 

Anyone able to explain?

[AnimalMagic]

Hi Guys,

 

Finally had our hearing last week, unfortunately we lost Solicitors sprung a new legal argument a few days before the hearing and I struggled to understand it and it really only became clear after the Judge's summing up. At least we gave them a scare

 

We have been given extra to time appeal as the argument is open to interpretation. This is under consideration.

 

What we have to deal with is the claimant has been given a repossession order, and we have been given extra time to ask for the repo order to be suspended. I assume this is done via N244?

 

The contract I have recently signed is for 3 months. It is expected to continue beyond this, but there is no guarantee. I am offering a norgen agreement to pay out the arrears over nearly 10 years. The gross income from the contract is significant, however that is paid to my company. My nett income is less than half this, albeit dividends are paid 2-4 times per year.

 

My nett income is sufficient to cover our current outgoings plus arrears and interest on arrears over the remaining ~10 years of the mortgage.

 

The reason for our arrears (family illness) has gone away, so it's now full steam ahead, subject to keeping our home

 

Questions I have:

1. Will the 3 month contract be sufficient for the Court to suspend the repo?

 

2. Will making an up front lump sum toward arrears make any difference?

 

3. Will mentioning that I tried to settle the repo proceedings earlier in the year, however the Claimant would only accept on condition that I agreed never to bring up s140A in relation to the agreement. They were even prepared to write off the arrears...

 

4. Will mentioning the delays caused by the Claimant starting the action in a court in a different county and their repeated failures to comply with court orders and information requests make any difference? Not to mention springing the new legal argument on me a few days before the hearing.

 

5. The Claimant swore under oath that some charges had been refunded. They also swore that the monthly payment was nearly 100 more than it should be. I have the documentation to show this monthly payment is wrong and that this payment has been deducted (and continues to be deducted) for the last 18 months or so. Is this the right time to bring this up?

 

6. Similarly to (5) for some arrears fees.

 

7. In relation to the legal fees, the Judge said I need to make an 'Application for Account'. How do I go about this? I assume it is an application to the Court?

 

8. Is the fact that I made an offer prior to the hearing and the various antics of the Claimant (see q4) sufficient to make an argument that costs shouldn't be applied? Would the Claimant's requirement that I settle something (ie the s140A argument) beyond the repossession proceedings be deemed unreasonable?

 

Thanks in anticipation...

 

ps for those who have mortgages prior to Oct 2004, S140A of CCA does apply to these mortgages (and indeed almost all credit agreements CCA regulated or not). There is a get out of jail free for the lender in the transitional provisions, so if you want to go down this route you need to check these carefully...

[Lea_HTH]

What is the additional claim they put forward?

[AnimalMagic]

What is the additional claim they put forward?

Briefly, there's a section in the transitional provisions which is open to interpretation... hence why we have been given extra time to seek advice on appeal.

 

It revolves around the fact the the Claimant previously sought repo (a separate issue) prior to 2008 and at that hearing I had the opportunity to bring up the defence that I had submitted. According to their interpretation of the transitional provisions this fixed the date under which the legislation that had to be applied was what was in force at that time (i.e. prior to s140A). Therefore in this particular instance s140A didn't apply. It doesn't mean that s140A doesn't apply to my mortgage, just these proceedings. The Judge made it clear that she wasn't satisfied, but as I had nothing to counter it she was basically compelled to find in favour of Claimant.

[Lea_HTH]

I presume you are going to seek the assistance of a solicitor in this matter? Clearly it will be material to the current proceedings if their argument is in fact correct - albeit I think that if you can show that you can clear the arrears within a reasonable time (under Norgan that could be the remaining term of the mortgage), then there is no reason why the judge would not suspend the order.

 

Your difficulty is clearly the contract you are hoping to rely on. It's only for three months with a possibility of extending - there is no guarantee it will be extended, but it is up to you to persuade the judge that even if it's not, you will still be in a position to repay the arrears in a reasonable time. Try and ensure any offer you make is realistic in relation to that contract - the court is far more likely to suspend an order on the basis of realistic alternatives - e.g. if the contract is extended you can afford X towards the arrears and if not, you can afford Y. So long as X or Y are within the Norgan calculations, you stand a good chance.

 

2. Yes - lump sum payments are usually persuasive, but only if they are followed up by regular payments off the arrears. Lump sum payments immediately prior to a hearing are seen as desperation rather than realistic and are often not taken into account unless they substantially reduce the arrears.

 

3. The Claimant should not have told you they'd accept one thing if you dropped another - it could be seen as oppression. Without knowing the full facts it would be difficult to assess either way - you'll need a solicitor to look at all the paperwork to ascertain precisely what it was that they were persuading you against.

 

4. Probably not - but that doesn't mean that you should not make reference to it if you feel it has prejudiced your defence in some way.

 

5. Are you saying you have overpaid by 100 every month for 18 months? If so, and you have proof, by all means include it in your defence as it will reduce the arrears by a further 1800.

 

6. They are entitled to charge fees for arrears (you can find out how to reclaim elsewhere on the site) - they are not entitled to add them to arrears figures and tell the court they are arrears.

 

7. Your account is held by your mortgagee - request copies of statements via a Subject Access Request Notice. (You will find help elsewhere on the site with letters for this).

 

8. Costs are a contractual matter governed by your contract with them for the mortgage. The mere fact they had to instigate legal proceedings against you is sufficient for them to be awarded costs when they win in court (they won - even if you've been given leave to appeal).

[veganite]

just to update, even though its already 2 years old...

 

The Court emphasised that, as the loss of one’s home is the most extreme form of interference with the right to respect for the home, “[a]ny person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in light of the relevant principles under Article 8

The Court concluded that there had been a violation of article 8 of the Convention because the applicant was dispossessed of her home without any possibility of having the proportionality of her eviction determined by an independent tribunal.

Quoted from: http://www.hrlc.org.au/european-court-rules-on-the-importance-of-proportionality-and-personal-circumstances-in-eviction-cases