Repossession and Eviction by HSBC. URGENT hearing tomorrow - **RESOLVED SATISFACTORILY**

[Zaq]

My son was evicted on Wednesday 25th Aug. It came as as surprise. He hadn't been aware of any proceedings against him. He works too hard, is often away, and admits doesn't always read his mail properly.

 

He'd been overpaying regularly from the start of the mortgage in June 05 until May 08. Then he'd not pay anything for months and then the odd thousand. So he did know he was in arrears.

 

In May 2010 he negotiated with the bank's solicitors to pay £1,000/mnth. He paid £2,000 in May, £1,000 end of May and end July with another £1,000 going out 27th Aug.

 

On the 26th he managed to speak to HSBC, who said their records say they were expecting £1,000 in addition to the mortgage repayment of £460/mnth (i.e. £1460 ), considered he had broken the terms of the agreement so got an eviction order.

 

We got some paperwork from the court which shows they got a possession order in Sept 2008. They say he had arrears of £5,605. He was unaware of tall of thiis, can't remember getting letters & so wasn't at the hearing. (He was back and forth to the States a lot that year & it may well have all got buried in pile of mail.)

 

There have been numerous errors and corrections by HSBC on his mortgage account. The solicitor's statement submitted for the possession order says his last payment was March 08, when in fact it was May 08 but the bank 'reversed' the payments made in April and May and so these have not been credited to his account.

 

We put in a N244 on Friday 27th requesting access to the property, and that the possession order be set aside.

 

We'd like help in how to put our case to the judge at this hearing so he can get the house back.

 

He now has his parents on board. We'll help financially and help him organise his finances. He works freelance in the Motorsport industry, often forgets to invoice for work done, has a fluctuating income, but should be able to make £2,5000/mnth if he puts in the invoices properly and gets paid. His expenses are around £614/mnth.

 

How can we persuade the judge that things are different now and he won't default again?

 

So far our plan is-

-I ( his mother) am prepared to act as his secretary to raise invoices.

-His parents will pay for a book-keeper for him.

-I've suggest he & I open a joint bank account for the mortgage repayments, so the money is ring fenced. He + parents put money in, and I have oversight of that account.

-All bank correspondence, and letters from their solicitor, come to me.

 

Should we make an offer to the bank at the hearing? Or do we just give the judge information about income and expenditure ( which we did send with the n244) and leave it to them to decide?

 

We're awaiting a date of the hearing.

 

No-one has told us about what happens to the debt, does he still have to pay the bank money regardless of all this?

 

Thanks for help.

Zaq

[Conniff]

If he can show that he has a 'regular' income and that he can afford the mortgage 'and' the arrears, he will need to show this in black and white. It's not the amounts that are important but the making a payment 'every' month that would be likely to sway things.

 

He will need a bank account and should open one before he approaches the court.

 

If the repossession stands, the bank will sell the house, usually at auction, and bill him for any shortfall between the price received and the amount outstanding.

[Zaq]

Thanks, that's helpful.

He has worked for the same person for the last few months, albeit on a freelance basis, but it does mean a regular income. Except he hasn't invoiced the chap, so hasn't actually been getting paid. He'll put the invoices in this morning.

 

I've asked him to get a letter from the chap to say he is now working regularly there.

 

He has a bank account, but not much has been going in. Will the court need to see his bank statements?

[Debvfm]

Hi

 

The Court will not be interested in his bank statements. They really only care in the here and now and what payments can be made in the future.

 

I hope this helps.

[sillygirl1]

The court WILL be interested in the payment history, they would be fools not to. I bet the overpayments haven't been taken into account properly and that a load of charges (which can be reclaimed) have been added.

 

Make a list of all the payments made and tie it up with the statement which should be part of the repossession proceedings, if it isn't apparent what they have done ask for more time to see the documents the mortgage company have.

 

Mortgage companies are notorious for employing local junior solicitors and instructing them to go for repossession only with no other option. I wouldn't mind betting your son is actually well in advance of his payments.....

 

Good luck with this and don't let the negative poster put you off. I've been through this in the last three years and fought off repossession six times, with arrears LESS than yours. In the end both companies involved in my mortgage/second loan ended up in administration due to malpractices.

[Zaq]

Hearing set for 7th September.

 

Gives us time to get the paperwork together, but means poor son camping out in spare room for longer.

 

There seem to be numerous errors in bank paperwork. Starting with a letter for immediate and full payment, and threatening court, before there were any arrears at all.

 

The arrears are about £9,000 now. He has, realistically, about £600 spare a month. If payments are £460 month, how much is it reasonable to offer per month to pay off arrears? Would £200 a month for arrears be OK? The mortgage still has 20yrs to go.

[sillygirl1]

As I said you need to claim back all of the charges, as it is a repossession he should really have the hearing earlier than the 7th, try to get one THIS week instead of next, there is only so much time before the company can put the house on the market.

 

You can use all sorts of ammunition against them, including the fact that he works away from home a lot and therefore is very vulnerable....

[Zaq]

Ok. Will do.

 

There's a charge for solicitor's fees on their claim for possession form, so we'll claim for that.

 

But when my son phoned them to ask about fees or charges they said there weren't any and that the current debt is just the normal loan interest + arrears. Could that be true?

 

He's keeping the bank and the solicitors informed of everything. So they know a hearing is coming up. Could they still put the house on the market?

[citizenB]

Yes, I agree with sillygirl the court will want to know about income and what prospects there will for repayment. I am rather surprised the Bank didnt agree to reschedule the arears over the remaining length of the mortgage given there are still 20 years left.

 

If you put all you have said above into a statement, backed up with statements etc then it should be taken seriously. New laws allow for courts to look at repossession as a last resort not a first get out for the banks. Good luck and please let us know how you get on.

[citizenB]

He's keeping the bank and the solicitors informed of everything. So they know a hearing is coming up. Could they still put the house on the market?

 

If you have put in an application for a set aside submitted, I think they should put a hold on any sale. But SG seems to know more about that side of things.

[sillygirl1]

They have 21 days from the time of the initial possession to get a case for sale ready,once this deadlin has passed that is it, no more getting your property back. Your son should be given access in that time to get his possessions out, if he hasn't already. If he doesn't get this then he can put that in a statement as well, stating they have been unreasonable and clearly want all his possessions, whether they have any material value or not, or whether they belong to him or other family members.

 

I had personal experience of this nearly four years ago (October 12th) and have helped a couple of people since keep their property.

 

You can also ask at the hearing that bearing in mind the state of the property market the prospects of getting the real value back are zilch so they may as well let your son stay there and make payments.

 

I would offer £150 as additional payment, on condition that no further fees are added.

 

Stay off the phone as they will lie and cheat their way to what is not due to them, arrears ALWAYS attract additional fees so it is highly likely these have been added, there will be more than one lot of solicitors fees, charges and disbursements to claim back.

 

I will do what I can over the next few days to help but am at work during 8.30 to 4.30 and might not always be able to get onto the site.

 

There is another member of this site I can alert to your sons case who is far more adept than I am at getting reposessions overturned. I will see if I can alert her to the problem (I think she might be on holiday as I haven't seen any recent posts)

[Zaq]

He's already been evicted. The order of possession was 23 Sept 2008. Does that make a difference?

 

So how do we find out the truth about the fees and charges? There is nothing on the statement of the mortgage account. It has one entry for fees, the rest says 'debit interest'.

 

The mortgage interest on the statement is entered as' interest' then on 1 August 2008 it changes to 'debit interest'. Is that significant?

 

This is what I've drafted for the hearing- what do you think?

 

I am the defendant in this case and respectfully request the court to consider the following information which is supplementary to that contained with my N244 application.

 

The claimant issued a demand for immediate payment on 23 May 2008, when there were no arrears – please see appendix 1 (copy of letter)

 

The arrears arose after June 2008 because I was not paid for work done in the last half of 2008, and my income became irregular.

 

I have paid a total of £8000 into the account between 19 Dec 2008 and 31 July 2010 - please see appendix 2. ( copy of mortgage account statement)

 

I am now working regularly- please see appendix 3 ( letter from person he works for)

 

I am confident that I am now in a position to make the regular normal monthly repayments and £150 per month towards the arrears.

 

I respectfully request the court take into account the case of Cheltenham and Glouceter v Norgan and s.36 of the Administration of Justice Act 1970 when considering the proposal for payment of arrears.

 

I wish to bring to the court’s attention that I am unable to reconcile the arrears figure given by the claimant as charges are included, the amount due on the payment history differs from the amount on my account statement, and my payments on 1 April 2008 and 1 May 2008 have not been credited the account- please see appendix 4,5 and 6. (page of claim form on which charges appear, schedule of payment submitted to court by claimant and page from my mortgage account statement, page from my mortgage account statement.)

 

I assure the court that I am committed to clearing the arrears and respectfully ask that the order for possession is set aside.

 

I believe the above to be true and factual.

[Debvfm]

I would just like to mention I was NOT being negative!! Speaking from recent (a week ago) experience with the Court and District Judges and on previous occasions although I took my bank statements they were not interested.

 

I would take everything that you have to back up your case, rather take too much than not enough.

 

Good luck.

[Zaq]

We'll take them just in case, better to have too many bits of paper & not need them rather than not take one they actually want!

[sillygirl1]

I think it varies from court to court and judge to judge, some judges I saw wanted every piece of paper imaginable, including my work contract and last six months bank statements, other judges didn't bother and just said "suspended for a further three months".

 

I think in view of the current pre court protocols the old case should be set aside and the repossession overturned. You need to make that clear in your statement, that the reposession has actually happened and left your son homeless. It doesn't seem clear from the statement you have done above.

 

As it is HSBC not knowing them I can't comment but it sounds like their administration has screwed up, paying £1000 when there is a mortgage of £460 is a LOT on top so somewhere they haven't taken this into account..... I still think the additional repossession charges should be annulled as part of the original set aside.

 

Would it be possible for your son to rent the property whilst he is away for long periods or are they too erratic, in which case maybe a lodger is a good idea, overseen by you of course.

Edited September 1, 2010 by sillygirl1
Missed a bit out...

[Zaq]

I'll redraft the document to say he's already been evicted.

 

They didn't credited 4 months of repayment to his account, prior to taking action. On the bank's claim form the date of last payment is out by 2 months, and arrears figures are don't take into account 4 months repayment .

 

Getting a lodger in is a good idea, he's done it before.

 

Went to see a solicitor yesterday to try and get some clarity on all of this. He basically said the whole account is in a big mess, (which it is ) and to give the judge an easy decision by saying my son can pay the normal monthly and clear the arrears.

[Zaq]

We've only got 5 mins! How's this?

 

 

I respectfully request the court to consider the following information

 

• I was evicted on 25 August 2010.

 

• I only came to know of the order of possession, dated 23 September 2008, on 27 August 2010. I acted promptly and made an immediate application for a hearing.

 

• At the end of May 2008 I encountered financial difficulties due to non-payment of work carried out, and my income became irregular. I communicated with the claimant, and explained there would be difficulty making the regular repayments.

 

• Nevertheless, I have paid £8,750 into the account since then.

 

I have kept the claimant updated regarding my circumstances.

 

I responded promptly to a letter from the claimant’s solicitors received in May 2010. I agreed payment to reduce the arrears. I have paid £4,750 between 24 May 2010 and 31August 2010. I have complied as far as I have understood the agreement,

 

• I am now working regularly. I am confident that I can make the regular normal monthly repayments. I can clear the arrears with a lump sum payment.

 

• I wish to bring to the court’s attention that I am unable to reconcile the arrears figure given by the claimant, in particular because the payments of 1 August 07, 1 October 07, 1 April 2008 and 1 May 2008 have not been credited to my account.

 

I assure the court that I am committed to clearing the arrears and respectfully ask that the order for possession is set aside.

 

I believe the above to be true and factual

[Zaq]

*****

 

Now realised the 4 uncredited months are actually bounced DDs so here's the next draft...

 

 

 

• I was evicted on 25 August 2010.

 

• I only came to know of the order of possession, dated 23 September 2008, on 27 August 2010. I acted promptly and made an immediate application for a hearing.

 

• At the end of May 2008 I encountered financial difficulties due to non-payment of work carried out, and my income became irregular. I communicated with the claimant and explained my financial circumstances.

 

• Nevertheless, I have paid £8,750 into the account since then.

 

I was working abroad frequently in 2008. I kept the claimant updated regarding my circumstances.

 

I responded promptly to a letter from the claimant’s solicitors received in May 2010. I agreed payment, the amount to include repayment and a reduction of arrears. I have complied as far as I have understood the agreement. I have paid £4,750 between 24 May 2010 and 31August 2010.

 

• I am working regularly. I am confident that I can make the monthly repayments. On 26 August 2010 the claimant informed me these are £460 a month.

 

• I can clear the arrears with a lump sum payment. The claimant informed me on 31 August 2010 that the arrears are £9,132.64.

 

• I wish to bring to the court’s attention that I am unable to reconcile the arrears figure given by the claimant as charges are included.

 

• I wish to bring to the court’s attention the claimant’s letter dated 23 May 2008 demanding full and immediate repayment.

 

I assure the court that I am committed to clearing the arrears and respectfully ask that the order for possession is set aside.

 

I believe the above to be true and factual

 

 

The letter 23 May 2008 was from HSBC - after he'd missed 2 months. Does this muddy the waters? Should we just concentrate on the arrears given how short a time we have?

Edited September 6, 2010 by Zaq

[Zaq]

My son was evicted 25 Aug 2010. He didn't attend hearing 23 Sept 2008 as didn't know any thing about it and in any case was out of the country.

 

The Hearing we applied for under N244 is tomorrow- for 5 mins. He's the draft statement.

 

• I was evicted on 25 August 2010.

 

• I only came to know of the order of possession, dated 23 September 2008, on 27 August 2010. I acted promptly and made an immediate application for a hearing.

 

• At the end of May 2008 I encountered financial difficulties due to non-payment of work carried out, and my income became irregular. I communicated with the claimant and explained my financial circumstances.

 

• Nevertheless, I have paid £8,750 into the account since then.

 

I was working abroad frequently in 2008. I kept the claimant updated regarding my circumstances.

 

I responded promptly to a letter from the claimant’s solicitors received in May 2010. I agreed payment, the amount to include repayment and a reduction of arrears. I have complied as far as I have understood the agreement. I have paid £4,750 between 24 May 2010 and 31August 2010.

 

• I am working regularly. I am confident that I can make the monthly repayments. On 26 August the claimant informed me these are £460 a month.

 

• I can clear the arrears with a lump sum payment. The claimant informed me on 31 August 2010 that the arrears are £9,132.64.

 

• I wish to bring to the court’s attention that I am unable to reconcile the arrears figure given by the claimant as charges are included.

 

• I wish to bring to the court’s attention the claimant’s letter dated 23 May 2008 demanding full and immediate repayment.

 

I assure the court that I am committed to clearing the arrears and respectfully ask that the order for possession is set aside.

 

I believe the above to be true and factual

 

 

 

Does the letter 23 May 2008 from HSBC, after 2 months missed, just muddy the waters? Or worth putting in as shows poor handling/ no negotiation with son.

[sillygirl1]

Yes, it is well worth showing them up for rapidly forcing an eviction without any negotiation. Good luck with this and I hope the whole thing gets overturned and the property restored to your son.

 

If you get the opportunity try to go for some additional costs of alternative accommodation, stress etc if the judge asks. Don't just bring it up otherwise the judge might change their mind....

[citizenB]

Zaq, I noticed you started a new thread in a different forum, but for the same issue. It is best to keep everything regarding this in the one thread.

 

Both threads have now been merged.

 

When is the hearing ?

[Zaq]

Hearing is tomorrow 7 Sept. Wasn't getting any replies so posted in different place. Apologies if wrong protocol.

[citizenB]

No problem at all..

[citizenB]

Your tactic worked anyway, cos SG areplied:) I would agree with her comments below.

 

Yes, it is well worth showing them up for rapidly forcing an eviction without any negotiation. Good luck with this and I hope the whole thing gets overturned and the property restored to your son.

 

If you get the opportunity try to go for some additional costs of alternative accommodation, stress etc if the judge asks. Don't just bring it up otherwise the judge might change their mind....

[Zaq]

Success

 

We went to the hearing and learnt -

-The laws changes once an order has been executed. So once my son had been evicted, setting aside the order of possession was not a legal option.

-Getting entry once evicted is very rare.

-Money talks.

 

When we turned up a lawyer for the other side took us into a room to say he'd been instructed to oppose us and allow everything to stand. We offered to settle the arrears as a lump sum. He told us that we could have done that as any time, and then might have had a case. We had been told by the bank a number of times that we couldn't do this!

 

We insisted we had the funds available immediately and as that was a significantly different offer to the previous one of large monthly payments to cover arrears, he got onto the phone, and after a lot of horse trading back and forth, we settled on a sum that we ( I !) could afford and they would accept.

 

We then went into the judge with an agreement. He can get back into the house but if the lump sum is not paid and the monthly repayments are not made he's back to the process of being evicted. The judge accepted that and he added that this was a very unusual case.