Capstone/SPPL August eviction Help!

[sawyer]

Hi, Ell-en gave some much appreciated help earlier this year with a suspended repo with Capstone/SPPL which we were very grateful. Capstone/SPPL are now at it again eviction August 13th even though the court agreement of monthly payments + £50 to clear the ‘alleged’ arrears has been kept to.

Capstone/SPPL have gone for possession again claiming we have not kept to the arrangement. Payments in cash have been made into the bank each month via paying in book, we have receipts as proof. What has happened is some of these payments have been lost, Capstone/SPPL have also closed the account and other strange goings on. A different AC number to pay into has now been given at the bank.

Capstone/SPPL have added litigation fees £115, solicitors fees, legal costs £400 etc to the ‘alleged’ arrears from Jan – July, so paying off £50 per month to clear the arrears has no effect on the ‘alleged’ arrears figure, especially when some of our payments are not showing on the statement.

Capstone/SPPL state because litigation started prior to 2007 they do not need to adhere to the Mortgage Pre Action Protocol. They have done nothing to help at all.

I am ok with N244 form etc but would like a little help with a good letter. I need the Judge to actually read what is put before him!

[roxy2010]

Dear Sawyer

The same thing has happened to us. We had an order amended in April after they took us to court and then didnt turn up. The amended order states to pay the contractual payment plus 350 off the arrears. The new order didnt specify a date just said monthly. They are now saying we have breeched it. They are saying that it should of been paid on the first but the courts are saying that the mortgage company have breeched it because it should of been paid on the 7th July so you tell me.

I am before the Judge on Friday to fight my case once again. I also sent these scumbags a Subject Access Request re the charges that have been applied to our account they waited a month before sending me a letter stating that it wasnt handwritten so they couldnt do it. They had then the audacity to keep my £10 postal order which I sent them.

[littledotty27]

Hi Sawyer

 

Same thing happened to us aswell,had a/c no changed & asked to pay into a different a/c under a different name. We was ordered to pay solicitors,we did for 9 months then was told they were closing the file & would no longer be instructed.

Payments sent to capstone but they just returned them. They issued eviction for 6th aug & were in court early next week to defend.

 

If you have receipts to prove payment,you can put this in the letter of defence & affix copies as evidence.

 

Good luck

[sawyer]

I wish you both good luck at court and hope things go well for you which with Ell-enn's help no doubt they should.

[roxy2010]

Well everyone on the forum I went to court on Friday and me and my partner were evicted. The reasons the Judge gave was that we were in negative equity and that my partner worked in the construction industry and may lose his job again. We have a week and two days to find somewhere. The council cant help and we dont think we will be able to private let from an estate agents as we have been repossessed. Capstone just sat there and agreed with everything the judge said. We wouldnt of been in negative equity if Capstone hadnt added numerous charges to our account every month then we would of paid most of the arrears off. We were devastated on Friday but now I am just angry. So just to let other people know who are with this terrible mortgage company that they do win I just hope the Judge can sleep on a night but he will as he will have his seven bedroom house to go home to.

[littledotty27]

Roxy

 

I am so sorry to hear your news, I really don't know what to say!

I was in court myself yesterday in front of the **** & in the same position,partner in the construction business-self employed,capstone reckon in negative equity,yet valuation was done nearly 18 months ago.

It got adjourned for a further hearing in october.

You need to go to your local council & speak to the emergency housing officer asap.

I will be back a bit later on & will see if there is anything further you need to do.

Big hugs to you

[cher69cher69]

Hi Roxy

I havent commented on your situation before but i wanted you to know that I am sorry for what has happened to you at the hands of these scumbags, and if it is any consolation whatsoever the likes of Littledotty and myself and numerous others are working day and night to try to stop these barstewards, I have just got involved with a site who are petitioning parliament to get compensation for people who have been unlawfully repossessed, I can see it taking a long time but I will not stop fighting for justice for those who have been let down by judges in cases like yours.

I am truly sorry for what has happened and I know it doesnt help you now, but you never know in the future there may be some way you can claim some form of compensation.

You guys take care now and hope things start improving for the future

Kindest regards Cher69

[roxy2010]

Thank you both of you for your kind comments.

 

I sat in the council office yesterday for three hours to be told they couldnt help us and it would probably take two years to get council property. They wont be able to put us on there lending scheme as they prefer people who are on benefits unbelievable. We are now trying the private sector but are having no luck. I would like to appeal the decision but my partner says not to bother I am so angry at the moment. Looks like we might be selling the big issue next week.

Thanks again

[Ell-enn]

Hi there, what an awful decision for the judge to make, it's unusual for that to happen when people are in work

 

Have you been in touch with Shelter? they can offer all sorts of help in your situation 0808 800 4444 it might take some time to get through to them as they are very busy, but please keep re-dialling until you speak to someone.

[cher69cher69]

Hi ROXY Please don’t give up now !!! I dont even know if I am allowed to copy stuff off another website but you need help urgently and that was the only thing I could think of doing to help you so here goes!

I have chopped and pasted this together with all the info you should need to stop this eviction all you have to do is amend it to suit your circumstances. Good Luck Chick

And GO FOR IT !! This time you will nail em!!!!!

Get money and legal advice

It’s vital to get legal and money advice immediately to try to stop or delay your eviction. A solicitor or adviser can help you work out your options, including:

•asking a judge to delay the eviction or allow you to stay in your home

http://www.communitylegaladvice.org.uk/en/directory/directorysearch.jsp

Eviction notice – what will happen and what to do if you get one

If you don’t leave your home by the date given in an outright possession order, your lender can ask the court for a ‘warrant for possession’. If the court gives a warrant, you’ll be sent an eviction notice that gives a date when you must leave your home. If you don’t go, bailiffs can evict you. The costs of doing this will be added to the money you owe.

Appealing against the decision of your possession hearing If you think a judge made mistakes about the law or the facts of your case in the original possession hearing, you may be able to appeal. Find out how to make an application for an appeal and what the judge may decide at the hearing.

Making an appeal – what it means

An appeal means asking for the judge’s decision in the original hearing to be looked at again. Making an appeal is different to asking a judge to delay eviction or change the payments you make to keep your home. You’ll only be able to appeal if you can show that the judge made mistakes about the law or facts of your case when making a decision. Giving reasons for having an appeal is sometimes called ‘grounds for an appeal’.

I copied this from another helpful site and it tells you exactly what to do in your circumstances okay GO FOR IT ROXY!! THIS CAN BE FOUGHT AND USUALLY SUCCESSFULLY.

READY? LET’S GET TO WORK.

1. You are maintaining your payments but the court have sent you a warrant for eviction.

This is likely to have occurred because they have “lost” your payment, or because your “arrears” have risen due to all the unlawful charges they keep applying. Please note that you will never receive any notification that they have applied to the court for a warrant for your eviction. You will only know when you receive the warrant. Even at this late stage you can fight and keep your home. If you have missed previously agreed/ordered payments this is more difficult, but still not impossible.

You probably have lots of grounds for appeal First of all they shouldn’t have taken you to court in the first place because they didn’t explore every other alternative.

Here is an ace template letter from and exceptional person who gives his time free to help others . This is what you should write in your appeal to the court:-

2. You will need to make an application notice to the court. This usually costs £35 but can vary. The form you need is N244. YOU MUST FILE THIS APPLICATION OTHERWISE EVICTION IS ASSURED.

http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_e.pdf

Using Form N244 lets you apply to the County Court for an emergency hearing. However, you MUST provide some evidence as to why the Court should postpone or cancel your Order for Possession.

Basics

Name of court: Court in which case it to be heard (this can be found on the original judgement order).

Claimant: Your mortgage company including the reference number used on the original judgement order.

Defendant(s): This is you and anyone else named on the mortgage.

Date: Date of filing the N244.

Claim Details

1. Your name or names of persons making the application.

2. Tick – Defendant.

3. Write in here what you are asking the court to order i.e. have the warrant suspended or set aside.

4. Ignore

5. Tick – Hearing

6. Enter here how long you want the hearing to last and tick – No to all parties agree.. For example if you have lots to argue then put at least 30mins. By default the court will allow 10mins for possession cases. When handing in the completed form, make sure the court clerk is aware of how long you have requested for a hearing as they still have a habit of ignoring the request and will go ahead and allocate 10mins.

7. Enter the date of the eviction warrant and time if applicable.

8. Write – District

9. Write – All parties

10. Tick – All boxes that apply (most likely all of them) and in the box below write see attached. It is unlikely that the box provided is big enough to provide all details that you wish to put forward. Type your statement of case, witness statements and evidence into a presentation and with a table of contents so it looks professional and is easy to navigate. Make sure that all pages have the claim number on them so they are not lost and number each page as well to keep them in order.

11. Sign and date and complete address details and telephone number.

The form is now complete and needs to be handed in with the relevant as mentioned above.

YOU WILL ALSO NEED A STATEMENT OF CASE:

Your statement of case should include the following:

1. The claimant’s claim for possession of the mortgages premises is falsely premised and vexatiously sought.

2. It is falsely premised because:

a) the claimant has not stated the correct amount of arrears

b) the total arrears claimed is comprised of various charges including arrears fees, litigation management fees, legal fees and arrears interest.

c) The total claimed is xxxx.xx. The total value of the unfair charges is xxxx.xx

d) These charges have been heavily criticised by the Treasury Select Committee, The Office of Fair Trading, the Financial Services Authority and the Financial Ombudsman Service as unfair. Unfair charges are not binding on the consumer.

e) These charges in contravention of the Unfair Terms in Consumer Contracts Regulations (SI 2083, 1999)

UTCCRs

f) The claim is brought in the name of the original lender by Capstone Mortgage Services. There is no evidence that Capstone hold or retain the authority or capacity to bring claim. Until such time as Capstone provide authorisation from the original lender they may be falsely representing their own capacity to bring claim.

3. The claim is vexatiously sought as the lender has not observed the Civil Justice Council’s pre-action protocol on mortgage repossession. Specifically:

“The court takes the view that starting a possession claim is usually a last resort and that such a claim should not normally be started when a settlement is still actively being explored. Discussion between the parties may include options such as:

a) extending the term of the mortgage;

b) changing the type of a mortgage;

c) deferring payment of interest due under the mortgage;

d) or capitalising the arrears”

The defendant respectfully submits that the claimant has explored none of these options. The Defendants cite Norgan V Cheltenham & Gloucester 1996 as an authority creating precedent from the Court of Appeal that the terms of the mortgage contract can be varied to allow repayment of the genuinely constituted arrears over the remainder of the mortgage term.

Norgan

4. The defendants kindly ask the court to take into account that there is a genuine ongoing individual investigation in respect of this account being undertaken by the Financial Ombudsman Service (Complaint Reference Number XXXXXXX).

5. The defendants respectfully refer the court to the decisions taken by the FSA in respect of GMAC-RFC (October 2009) and Kensington Mortgages (April 2010). Specifically it was found that unfair charging regimes had led to wrongful repossessions. It is kindly submitted that five other unnamed firms are also under investigation.

GMAC-RFC Final Notice

Kensington Final Notice

Courts must assess unfair terms in consumer contracts

6. The Defendants kindly request that the mortgage contract be assessed in terms of its overall fairness to the defendants as consumers. The court is mandated to do so by virtue of an ECJ ruling.

Courts in the EU must examine and rule on terms in consumer contracts that may be unfair even if no consumer has complained about them, the European Court of Justice (ECJ) has said. The duty will exist when a company seeks to enforce a consumer contract.

The European Union's Directive on unfair terms in consumer contracts governs contracts because consumers have no bargaining power when presented with pre-written contracts to sign. It says that any term that is unfair will not be binding.

7. The defendants respectfully submit that they have no confidence in the ability of Capstone Mortgage Services to process the payments correctly. We therefore seek the kind permission of the court to make all future payments into the court.

8. The defendant respectfully requests that the Suspended Possession Order be set aside until the genuine level of arrears is established, the authority of Capstone to bring claim is satisfied and the overall fairness of the mortgage contract is assessed including whether the unlawful charges levied are in the court’s kind determination, binding upon the consumer.

9. The defendant further kindly requests the order of the court that possession may not be granted until the outcome of the current FSA ongoing inquiry is known and the individual investigation of the Financial Ombudsman Service in this case is completed.

STATEMENT OF TRUTH. This one page summary simply has to be included in any defence

22 June 2009

The latest review from the Financial Services Authority (FSA) has found continued weaknesses in the way specialist lending firms and third party administrators are handling mortgage arrears and repossessions.

Four firms have been referred to enforcement for investigation and several more firms are being assessed for referral. In many cases the FSA found a high incidence of mortgages moving straight into arrears and potential breaches of responsible lending rules. All firms investigated will be required to take action to remedy failures identified in the arrears review.

This action comes as new data on mortgage lending, published today by the FSA, shows the number of consumers facing arrears and repossessions continues to increase. It also follows two warnings by the FSA last year that failing to treat customers in arrears fairly was unacceptable. The warnings were set out in an earlier survey of arrears handling and in a letter sent to the chief executives of all mortgage lenders and administrators.

The latest review focused on specialist lenders to the impaired credit market who are no longer lending, and on third party administrators (TPAs) contracted to handle mortgage arrears and repossessions work on behalf of lenders. It also looked at arrears charges and the treatment of borrowers whose mortgages have been securitised.

The review found that poor practice was still prevalent among specialist lenders and TPAs including:

• operating an approach focused too strongly on recovering arrears without reference to the borrower’s individual circumstances;
  
• being too ready to take court action;
  
• imposing arrears-related charges unfairly; and
  
• specialist lenders not exercising sufficient oversight of contracted TPAs.
  

And it identified terms in securitisation covenants which could lead to inequitable treatment of borrowers in arrears, by restricting the scope for the lender to exercise flexibility and forbearance, for example by prohibiting an extension of the loan term, or conversion to interest only for a period.

Lesley Titcomb, FSA director responsible for the Mortgage Sector, said:

“In current market conditions, with our data showing more people struggling to meet their mortgage payments, it is vital that firms treat customers who get into arrears fairly. It is unacceptable that some firms are applying fees unfairly and pushing customers towards repossession without considering alternatives. The steps we are announcing today demonstrate that proper handling of arrears is still a high priority for us and will continue to be so until the necessary progress has been made.

“The focus of today’s report was specialist lending but the messages apply equally to other mortgage firms. As a result of the Dear CEO letter sent to all lenders and lenders and administrators last November, follow up action is underway with a number of firms and the industry as a whole can expect continued intensive scrutiny of its arrears handling processes.”

To help firms with their mortgage and repossession handling, the FSA has outlined some examples of good and poor practice.

The FSA understands that customers in arrears are a vulnerable group who need help and advice. It has a wide range of mortgage material on the Moneymadeclearwebsite, including the “What to do when you can’t pay your mortgage” guide, which offers practical help for people who are struggling with mortgage repayments. The FSA requires firms to send this guide to consumers who fall into arrears. Consumers who are having difficulties meeting mortgage payments should talk to their lender immediately and may also wish to contact a free independent advice agency. If a borrower believes they have been treated unfairly by their mortgage lender, they should pursue their complaint through the firm’s internal complaints procedures. If they are not satisfied with the firm’s response, they may refer the complaint to the Financial Ombudsman Service.

The arrears review is part of the FSA’s ongoing programme of work designed to monitor the effectiveness of its regulation of mortgage lending, to address key issues in the mortgage sector and to ensure that consumers are treated fairly and can make informed decisions. The issues identified during the review are being factored into the FSA’s comprehensive Mortgage Market Review on which a Discussion Paper is due to be published in September.

That should get you started. Remember that YOU MUST AFFIRM your ability to meet your commitments under the mortgage going forward.

Deciding on the appeal

The judge who decides on the appeal will be more senior, or ‘higher level’, than the judge who made the original decision.

Getting advice if you want to appeal

If you want to appeal against the original decision you should get advice. But if I was you I would start the process NOW! You can find a legal adviser from the Community Legal Advice website.

Find a legal adviser - Community Legal Advice l

You may ask the judge if you can appeal (otherwise known as ‘permission’ or ‘leave’ to appeal) at the end of your original possession hearing. If you get permission to appeal, you need to make an application very soon after your original possession hearing.

Once you get permission to appeal, you’ll have to apply for an appeal hearing. You’ll have to pay a fee to the court to get an appeal hearing. If you are on benefits or low pay, you may not have to pay the fee (otherwise known as ‘fee remission’). Find out about fee remission - Her Majesty's Court Service website (PDF, 381K) Opens new window Help with PDF files If the judge refuses permission for an appeal – what to do

You can ask a higher level judge for permission to appeal if:

•the judge in your original hearing refuses you permission to appeal

•you didn’t ask for permission in your original hearing

The higher level judge will decide whether to give you permission to appeal by looking at the court papers for your case or by holding a new hearing.

Appeal hearing – what could happen

If you do get permission to appeal, there will be an appeal hearing with a higher level judge making a decision. At the hearing the judge can decide a number of things, including:

•keeping the original decision

•dismissing (‘setting aside’) or changing (‘varying’) the original decision

•ordering a new hearing

The judge can also decide who should pay the costs of the appeal hearing (the legal costs like hiring a solicitor and the court fees). For example, the judge may decide that the person who loses should pay the costs of the other side.

You could also check to see if you could get any benefits by using the Directgov website and using the

Benefits advisor calculator

https://www.dwpe-services.direct.gov.uk/portal/page/portal/ba/lp

I know that sometimes it is easier just to throw in the towel and give up. Because everyday is hard when you have these barstewards on your back. But just go this one last step because if you don’t you will forever live your live wondering what if??

YOU HAVE NOTHING TO LOOSE !!!

I have stuck all this info together for you today in an urgent way so it may not be all in the right order and you should check with a legal advisor but I am sure you can win this if you give it another go with all the info I have put on for you . All you need to do is chop out what isn’t relevant to your case. Then stick it all together and hey presto a new defence but this time much stronger than before. GO FOR IT

Good Luck Hun!!

Please try to convince your other half not to give up now, you are in the right and crapstone are in the wrong. I am sending positive thoughts to you; I am with you all the way. If you don’t try this one last time you will never know, tell your hubby that too.

Also even if it failed it would still give you more time to find somewhere to live.

[cher69cher69]

Hi ROXY Please don’t give up now !!! I dont even know if I am allowed to copy stuff off another website but you need help urgently and that was the only thing I could think of doing to help you so here goes!

I have chopped and pasted this together with all the info you should need to stop this eviction all you have to do is amend it to suit your circumstances. Good Luck Chick

And GO FOR IT !! This time you will nail em!!!!!

First start with your appeal straight away!!

Get money and legal advice

It’s vital to get legal and money advice immediately to try to stop or delay your eviction. A solicitor or adviser can help you work out your options, including:

•asking a judge to delay the eviction or allow you to stay in your home

http://www.communitylegaladvice.org.uk/en/directory/directorysearch.jsp

Eviction notice – what will happen and what to do if you get one

If you don’t leave your home by the date given in an outright possession order, your lender can ask the court for a ‘warrant for possession’. If the court gives a warrant, you’ll be sent an eviction notice that gives a date when you must leave your home. If you don’t go, bailiffs can evict you. The costs of doing this will be added to the money you owe.

Appealing against the decision of your possession hearing If you think a judge made mistakes about the law or the facts of your case in the original possession hearing, you may be able to appeal. Find out how to make an application for an appeal and what the judge may decide at the hearing.

Making an appeal – what it means

An appeal means asking for the judge’s decision in the original hearing to be looked at again. Making an appeal is different to asking a judge to delay eviction or change the payments you make to keep your home. You’ll only be able to appeal if you can show that the judge made mistakes about the law or facts of your case when making a decision. Giving reasons for having an appeal is sometimes called ‘grounds for an appeal’.

I copied this from another helpful site and it tells you exactly what to do in your circumstances okay GO FOR IT ROXY!! THIS CAN BE FOUGHT AND USUALLY SUCCESSFULLY.

READY? LET’S GET TO WORK.

1. You are maintaining your payments but the court have sent you a warrant for eviction.

This is likely to have occurred because they have “lost” your payment, or because your “arrears” have risen due to all the unlawful charges they keep applying. Please note that you will never receive any notification that they have applied to the court for a warrant for your eviction. You will only know when you receive the warrant. Even at this late stage you can fight and keep your home. If you have missed previously agreed/ordered payments this is more difficult, but still not impossible.

You probably have lots of grounds for appeal First of all they shouldn’t have taken you to court in the first place because they didn’t explore every other alternative.

Here is an ace template letter from and exceptional person who gives his time free to help others . This is what you should write in your appeal to the court:-

2. You will need to make an application notice to the court. This usually costs £35 but can vary. The form you need is N244. YOU MUST FILE THIS APPLICATION OTHERWISE EVICTION IS ASSURED.

http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_e.pdf

Using Form N244 lets you apply to the County Court for an emergency hearing. However, you MUST provide some evidence as to why the Court should postpone or cancel your Order for Possession.

Basics

Name of court: Court in which case it to be heard (this can be found on the original judgement order).

Claimant: Your mortgage company including the reference number used on the original judgement order.

Defendant(s): This is you and anyone else named on the mortgage.

Date: Date of filing the N244.

Claim Details

1. Your name or names of persons making the application.

2. Tick – Defendant.

3. Write in here what you are asking the court to order i.e. have the warrant suspended or set aside.

4. Ignore

5. Tick – Hearing

6. Enter here how long you want the hearing to last and tick – No to all parties agree.. For example if you have lots to argue then put at least 30mins. By default the court will allow 10mins for possession cases. When handing in the completed form, make sure the court clerk is aware of how long you have requested for a hearing as they still have a habit of ignoring the request and will go ahead and allocate 10mins.

7. Enter the date of the eviction warrant and time if applicable.

8. Write – District

9. Write – All parties

10. Tick – All boxes that apply (most likely all of them) and in the box below write see attached. It is unlikely that the box provided is big enough to provide all details that you wish to put forward. Type your statement of case, witness statements and evidence into a presentation and with a table of contents so it looks professional and is easy to navigate. Make sure that all pages have the claim number on them so they are not lost and number each page as well to keep them in order.

11. Sign and date and complete address details and telephone number.

The form is now complete and needs to be handed in with the relevant as mentioned above.

YOU WILL ALSO NEED A STATEMENT OF CASE:

Your statement of case should include the following:

1. The claimant’s claim for possession of the mortgages premises is falsely premised and vexatiously sought.

2. It is falsely premised because:

a) the claimant has not stated the correct amount of arrears

b) the total arrears claimed is comprised of various charges including arrears fees, litigation management fees, legal fees and arrears interest.

c) The total claimed is xxxx.xx. The total value of the unfair charges is xxxx.xx

d) These charges have been heavily criticised by the Treasury Select Committee, The Office of Fair Trading, the Financial Services Authority and the Financial Ombudsman Service as unfair. Unfair charges are not binding on the consumer.

e) These charges in contravention of the Unfair Terms in Consumer Contracts Regulations (SI 2083, 1999)

UTCCRs

f) The claim is brought in the name of the original lender by Capstone Mortgage Services. There is no evidence that Capstone hold or retain the authority or capacity to bring claim. Until such time as Capstone provide authorisation from the original lender they may be falsely representing their own capacity to bring claim.

3. The claim is vexatiously sought as the lender has not observed the Civil Justice Council’s pre-action protocol on mortgage repossession. Specifically:

“The court takes the view that starting a possession claim is usually a last resort and that such a claim should not normally be started when a settlement is still actively being explored. Discussion between the parties may include options such as:

a) extending the terms of the mortgage

b) changing the type of mortgage

c) defferring payment of arrears under mortgage

d)or capitalising the arrears

The defendant respectfully submits that the claimant has explored none of these options. The Defendants cite Norgan V Cheltenham & Gloucester 1996 as an authority creating precedent from the Court of Appeal that the terms of the mortgage contract can be varied to allow repayment of the genuinely constituted arrears over the remainder of the mortgage term.

Norgan

4. The defendants kindly ask the court to take into account that there is a genuine ongoing individual investigation in respect of this account being undertaken by the Financial Ombudsman Service (Complaint Reference Number XXXXXXX).

5. The defendants respectfully refer the court to the decisions taken by the FSA in respect of GMAC-RFC (October 2009) and Kensington Mortgages (April 2010). Specifically it was found that unfair charging regimes had led to wrongful repossessions. It is kindly submitted that five other unnamed firms are also under investigation.

GMAC-RFC Final Notice

Kensington Final Notice

Courts must assess unfair terms in consumer contracts

6. The Defendants kindly request that the mortgage contract be assessed in terms of its overall fairness to the defendants as consumers. The court is mandated to do so by virtue of an ECJ ruling.

Courts in the EU must examine and rule on terms in consumer contracts that may be unfair even if no consumer has complained about them, the European Court of Justice (ECJ) has said. The duty will exist when a company seeks to enforce a consumer contract.

The European Union's Directive on unfair terms in consumer contracts governs contracts because consumers have no bargaining power when presented with pre-written contracts to sign. It says that any term that is unfair will not be binding.

7. The defendants respectfully submit that they have no confidence in the ability of Capstone Mortgage Services to process the payments correctly. We therefore seek the kind permission of the court to make all future payments into the court.

8. The defendant respectfully requests that the Suspended Possession Order be set aside until the genuine level of arrears is established, the authority of Capstone to bring claim is satisfied and the overall fairness of the mortgage contract is assessed including whether the unlawful charges levied are in the court’s kind determination, binding upon the consumer.

9. The defendant further kindly requests the order of the court that possession may not be granted until the outcome of the current FSA ongoing inquiry is known and the individual investigation of the Financial Ombudsman Service in this case is completed.

 

STATEMENT OF TRUTH. This one page summary simply has to be included in any defence

22 June 2009

The latest review from the Financial Services Authority (FSA) has found continued weaknesses in the way specialist lending firms and third party administrators are handling mortgage arrears and repossessions.

Four firms have been referred to enforcement for investigation and several more firms are being assessed for referral. In many cases the FSA found a high incidence of mortgages moving straight into arrears and potential breaches of responsible lending rules. All firms investigated will be required to take action to remedy failures identified in the arrears review.

This action comes as new data on mortgage lending, published today by the FSA, shows the number of consumers facing arrears and repossessions continues to increase. It also follows two warnings by the FSA last year that failing to treat customers in arrears fairly was unacceptable. The warnings were set out in an earlier survey of arrears handling and in a letter sent to the chief executives of all mortgage lenders and administrators.

The latest review focused on specialist lenders to the impaired credit market who are no longer lending, and on third party administrators (TPAs) contracted to handle mortgage arrears and repossessions work on behalf of lenders. It also looked at arrears charges and the treatment of borrowers whose mortgages have been securitised.

 

 

The review found that poor practice was still prevalent among specialist lenders and TPAs including:

• operating an approach focused too strongly on recovering arrears without reference to the borrower’s individual circumstances;
  
• being too ready to take court action;
  
• imposing arrears-related charges unfairly; and
  
• specialist lenders not exercising sufficient oversight of contracted TPAs.
  

And it identified terms in securitisation covenants which could lead to inequitable treatment of borrowers in arrears, by restricting the scope for the lender to exercise flexibility and forbearance, for example by prohibiting an extension of the loan term, or conversion to interest only for a period.

Lesley Titcomb, FSA director responsible for the Mortgage Sector, said:

“In current market conditions, with our data showing more people struggling to meet their mortgage payments, it is vital that firms treat customers who get into arrears fairly. It is unacceptable that some firms are applying fees unfairly and pushing customers towards repossession without considering alternatives. The steps we are announcing today demonstrate that proper handling of arrears is still a high priority for us and will continue to be so until the necessary progress has been made.

“The focus of today’s report was specialist lending but the messages apply equally to other mortgage firms. As a result of the Dear CEO letter sent to all lenders and lenders and administrators last November, follow up action is underway with a number of firms and the industry as a whole can expect continued intensive scrutiny of its arrears handling processes.”

To help firms with their mortgage and repossession handling, the FSA has outlined some examples of good and poor practice.

The FSA understands that customers in arrears are a vulnerable group who need help and advice. It has a wide range of mortgage material on the Moneymadeclearwebsite, including the “What to do when you can’t pay your mortgage” guide, which offers practical help for people who are struggling with mortgage repayments. The FSA requires firms to send this guide to consumers who fall into arrears. Consumers who are having difficulties meeting mortgage payments should talk to their lender immediately and may also wish to contact a free independent advice agency. If a borrower believes they have been treated unfairly by their mortgage lender, they should pursue their complaint through the firm’s internal complaints procedures. If they are not satisfied with the firm’s response, they may refer the complaint to the Financial Ombudsman Service.

The arrears review is part of the FSA’s ongoing programme of work designed to monitor the effectiveness of its regulation of mortgage lending, to address key issues in the mortgage sector and to ensure that consumers are treated fairly and can make informed decisions. The issues identified during the review are being factored into the FSA’s comprehensive Mortgage Market Review on which a Discussion Paper is due to be published in September.

 

That should get you started. Remember that YOU MUST AFFIRM your ability to meet your commitments under the mortgage going forward.

 

Deciding on the appeal

The judge who decides on the appeal will be more senior, or ‘higher level’, than the judge who made the original decision.

Getting advice if you want to appeal

If you want to appeal against the original decision you should get advice. But if I was you I would start the process NOW! You can find a legal adviser from the Community Legal Advice website.

 

Find a legal adviser - Community Legal Advice l

You may ask the judge if you can appeal (otherwise known as ‘permission’ or ‘leave’ to appeal) at the end of your original possession hearing. If you get permission to appeal, you need to make an application very soon after your original possession hearing.

Once you get permission to appeal, you’ll have to apply for an appeal hearing. You’ll have to pay a fee to the court to get an appeal hearing. If you are on benefits or low pay, you may not have to pay the fee (otherwise known as ‘fee remission’). Find out about fee remission - Her Majesty's Court Service website (PDF, 381K) Opens new window Help with PDF files If the judge refuses permission for an appeal – what to do

You can ask a higher level judge for permission to appeal if:

•the judge in your original hearing refuses you permission to appeal

•you didn’t ask for permission in your original hearing

The higher level judge will decide whether to give you permission to appeal by looking at the court papers for your case or by holding a new hearing.

Appeal hearing – what could happen

If you do get permission to appeal, there will be an appeal hearing with a higher level judge making a decision. At the hearing the judge can decide a number of things, including:

•keeping the original decision

•dismissing (‘setting aside’) or changing (‘varying’) the original decision

•ordering a new hearing

The judge can also decide who should pay the costs of the appeal hearing (the legal costs like hiring a solicitor and the court fees). For example, the judge may decide that the person who loses should pay the costs of the other side.

You could also check to see if you could get any benefits by using the Directgov website and using the

Benefits advisor calculator

https://www.dwpe-services.direct.gov.uk/portal/page/portal/ba/lp

I know that sometimes it is easier just to throw in the towel and give up. Because everyday is hard when you have these barstewards on your back. But just go this one last step because if you don’t you will forever live your live wondering what if??

YOU HAVE NOTHING TO LOOSE !!!

I have stuck all this info together for you today in an urgent way so it may not be all in the right order and you should check with a legal advisor but I am sure you can win this if you give it another go with all the info I have put on for you . All you need to do is chop out what isn’t relevant to your case. Then stick it all together and hey presto a new defence but this time much stronger than before. GO FOR IT

Good Luck Hun!!

Please try to convince your other half not to give up now, you are in the right and crapstone are in the wrong. I am sending positive thoughts to you; I am with you all the way. If you don’t try this one last time you will never know, tell your hubby that too.

Also even if it failed it would still give you more time to find somewhere to live.

[sawyer]

Hi Roxy, so sorry to hear of that decision. The judge’s reasons are beyond belief. Self employed workers in the construction industry are always being made redundant, once a contract finishes they just move on to another. He is not in the real world and has no knowledge of how the construction industry works. I would suggest that you appeal his decision and not let these thieving scumbags get away with it.

[Ell-enn]

Hi Sawyer, I've replied to your PM. Don't worry, you'll be OK

[sawyer]

Hi, I’ve just taken the morning off work to take in my N244 form to court only to find out that the eviction has been cancelled as the court had received a letter this morning. All that time and effort wasted. :-xAll I received in the post this morning was a further Capstone £115 Litigation fee. Bet I still get their legal charges added to my account. Many thanks to Ell-enn for all your help you are a star:smile:. Any advice from anybody what to do now regarding this shower of S***heads as no doubt in a few months time they will try again?

[sawyer]

Still nothing in the post to confirm what the court told me re the eviction cancelled. The court would not do me a copy of the letter or give anything else in writing to confirm what they said. Tried ringing Capstone & their solicitors but they are closed. Is this another Capstone [problem]?

[roxy2010]

Hi Everyone

Well just to let you know Capstone have rung me and my partner this am the date we are been evicted asking us to make a proposal to stop the eviction . My partner really give him what for and then he rang me. Told him that we would pay what was on the order and he said it wasnt enough. When I said that they were always going to breech us as they were going off the old order that was done in April and not the revised order that was done in June. If he had been in front of me and my partner he would of been decked after that he cut me off and I couldnt use my mobile for ages as it was locked. What they dont understand because they are total b------ds is that we have had a week to move out our property we have nowhere to live and its been a nightmare trying to find places to put our furniture whilst we have both been at work. They then have the cheek to ring us on the day of the eviction and ask us to make a proposal when they have no intentions to accept anything you offer. I really do hope that this **** get whats owing to them. We are never ever going to be rid of them this lifetime. We never got anything in writing from the court either about the hearing on the 30th July.

Edited August 11, 2010 by roxy2010
spelling

[Ell-enn]

Hi there, what an awful decision for the judge to make, it's unusual for that to happen when people are in work

 

Have you been in touch with Shelter? they can offer all sorts of help in your situation 0808 800 4444 it might take some time to get through to them as they are very busy, but please keep re-dialling until you speak to someone.

 

Hi there, have you been in touch with Shelter yet?

[sawyer]

Hi Roxy, has anybody been in touch with you re help ? Have you checked your private messages recently ?

[posiepebbles]

Just to reiterate Ell-enn's point, I'd really get Shelter involved if you can. If you can't get through on the Helpline number, try searching their website for a local office - they don't have them in all areas but do have quite a few. They may not be able to offer the full service - they might need to check if you're eligible for Legal Aid funding - but they have loads of experience in dealing with situations like yours. Eviction warrants can be stayed, the lender doesn't seem to have followed the correct protocol, I'm not convinced the council has fulfilled its legal duties (they very often dodge them but it's hard to tell in this situation without all the facts)... it's all very complicated but I do think there might be a way through this minefield with some professional help.

 

eta: forgot to say good luck! I'm really sorry you're having to go through this but please carry on fighting - there is a light at the end of the tunnel there somewhere.

Edited August 11, 2010 by posiepebbles

[sawyer]

Hi, I’ve just taken the morning off work to take in my N244 form to court only to find out that the eviction has been cancelled as the court had received a letter this morning. All that time and effort wasted. :-xAll I received in the post this morning was a further Capstone £115 Litigation fee. Bet I still get their legal charges added to my account. Many thanks to Ell-enn for all your help you are a star:smile:. Any advice from anybody what to do now regarding this shower of S***heads as no doubt in a few months time they will try again?

 

As expected received Capstone's solicitors costs of over £300 today. Anybody with Capstone still around?