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URGENT Help, trying to stop an eviction scheduled for 9 November


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hello all

 

I need help trying to stop a mortgage reposession eviction scheduled for 9th November.

 

Short history is as this: We (myself, wife, 2 kids) have been in the house since 2004. Weve had a right old time of it - my wife suffers depression and is housebound as a result, so mine is only income. Im self employed.

 

My earnings have been fairly erratic over the last 4 years or so due to a string of family problems - my father in law was knocked down and killed, so we became carers for my mum in law, who has alhziemers, for several months; then my own father was dianosed terminally ill, I took more time off work to look after him, then lost my regular freelance work, then all my other work dried up (im in the building game - nice one, bankers!) so weve been living on a pittance for a while, just about scraping by but not claiming any benefits etc.

 

Against this background, my mortgage company Platform obtained a repossession order in May 2008, suspended on basis of me paying installments plus part of arrears. I actually paid off the whole of the arrears in January 2009, but then my dad was taken ill, and I fell back into arrears as I was working P/T to look after him in his last few months. Platform allowed that to slide until June of this year, when they obtained an Evition date. I managed to convince them to accept an arrangement based on income that would be coming if from my self employment, and they cancelled the eviction. Then I missed my payment due on september 21st 2010 as im waiting for payment of an invoice, and on 13th October 2010, without prior warning, they instructed their solicitior to obtain a date for evition, which came back as 9th November 2010 from the court.

 

I want to try and ask the court for a stay or suspension of execution based on the fact that my arrears are due to circumstances beyond my control, that my wife is ill and eviction would have a serious detrimental effect on her health, and that Im starting a full time job on 8/11/2010 which will stabilise my income and give me enough to pay my mortgage and arrears off over a 3 year period.

 

I have an N244 form, need advice on how best to proceed and the likelyhood of suceeding! ASAP please, I need to move fast!:|

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Ta Rebel11

 

Ive made a bit of progress myself - I have written a letter to the court expaling the circumstances leading to falling into arrears, which I intend to attach to the N244 as evidence. I also have my offer of employment letter, and have requested a letter from my wifes Doctor detailing her condition.

I need advice with the following questions:

1. Should I pay Platform monies to bring my former arrangement up to date, or keep these as a war chest in case the eviction goes ahead? Ill need a deposit to rent somewhere..

or do i write to platform and offer to pay it, then use that offer and their response (if any) as evidence at court?

2. Where can i access case law of similar hearings that went favourably? How can I ask the court to take these into consideration?

3. Is this going to be difficult to swing in my favour? CAB (bless 'em) seemed pretty downbeat about my chances when I spoke to them!:sad:

 

thanks in anticipation of any advice!

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I'm not an expert in such matters, but I would imagine that the courts main focus would be future affordibility, as well as the potential hardship an eviction may cause.

 

As such, the offer of employment is key, as are the figures showing arrears can be paid off in 3 years (using income and expenditure details).

 

A lot of the rest is (IMHO only) somewhat irrelevant - by all means, include the reasons for the arrears but I doubt they will make a great deal of difference.

 

To answer your specific questions:

1) I would write to them and ask if they will agree a payment plan to keep this out of court.

2) They are of no relevance unless they set a legal precedent, and in this example there is no precedent to be set - it is simply the opinion of the judge basically.

3) As I mention, the offer of employment is key, and may be your saving grace here.

 

However, I stress - this is my personal opinion, and this is somewhat outside of my remit so I would await further responses.

7 years in retail customer service

 

Expertise in letting and rental law for 6 years

 

By trade - I'm an IT engineer working in the housing sector.

 

Please note that any posts made by myself are for information only and should not and must not be taken as correct or factual. If in doubt, consult with a solicitor or other person of equal legal standing.

 

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Thanks MrShed

In terms of case law, I was looking for some precedent in terms of what is a reasonable time in which to pay off arrears. I found reference elsewhere to Section 36 Administration of Justice Act 1970, which states:

" (1) Where the mortgagee under a mortgage of land which consists of or includes a dwelling-house brings an action in which he claims possession of the mortgaged property…the court may exercise any of the powers conferred on it by subsection (2) below if it appears to the court that in the event of its exercising the power the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage or to remedy a default consisting of a breach of any other obligation arising under or by virtue of the mortgage.

 

And do i state on the N244 that i want the judge to consider Section 36 in their judgement, together with case law, or will they just do that anyway?

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Fair point OP!

 

I'm not aware of any case law (but I wouldnt be as I'm not an expert!), but I would imagine that there wouldnt be - as a reasonable period would almost certainly depend upon the individual circumstances of each case.

7 years in retail customer service

 

Expertise in letting and rental law for 6 years

 

By trade - I'm an IT engineer working in the housing sector.

 

Please note that any posts made by myself are for information only and should not and must not be taken as correct or factual. If in doubt, consult with a solicitor or other person of equal legal standing.

 

Please click the star if I have helped!!

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Hi there, I can help you with a statement to go with the N244. You need to quote the Chelteham & Gloucester v Norgan case law - this gives the judge the power to order the payment of arrears over the remaining life of the mortgage if need be and certainly over a longer period of time than your lender would want. Let me know if you need help and I'll draft a statement for you.

 

You will also need to affix a budget sheet to the N244 to show how you are going to afford the extra payments towards the arrears each month, and I have attached the one we usually use. When filling it in, remember that the amount you offer towards the arrears each month is the amount left over after everything else has been accounted for.

 

A copy of your letter proving you are starting a new job will also be needed as well as any medical evidence you have for your wife's condition.

 

How old are your children?

Budget Sheet.xls

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Hi Ell-enn

 

My daughters are 19 and 16 - the eldest has just moved away to university, whilst the youngest lives at home and has just started A levels

Id really appreciate help with the statement - and where can i view the case law?

Ive already done a budget sheet myself on Excel, but ill tranfer the info to the one you attached, its easier to read

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Hi, affixed is an explanation of the case law and also S.36 Administration of Justice Act 1970.

 

I'll make a start on the statement and come back to you tomorrow - you have plenty of time to get your N244 application into court.

Cheltenham & Gloucester v Norgan.doc

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I will try to get it to you in the morning.

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Hi, affixed is an explanation of the case law and also S.36 Administration of Justice Act 1970.

 

I'll make a start on the statement and come back to you tomorrow - you have plenty of time to get your N244 application into court.

 

 

Hi Ell-enn, great case law. Can this case law also be used in Secured Lending cases, 2nd charge loan arrears? Or is just for first mortgage on the house?

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Can this case law also be used in Secured Lending cases, 2nd charge loan arrears? Or is just for first mortgage on the house?

 

Hi Fretful,

 

In answer to your question, absolutely - Norgan is the leading case in defining judges discretion in relation to all secured lending cases whether first, second, third or whatever charge.

 

It should be noted that it is not helpful in cases where the term has expired (most common in bridging loans cases) as obviously the judge cannot exercise discretion for the arrears to be paid over the remaining term when it's already passed.

 

Hope this helps.

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Hello all,

 

having read some of the other threads on here, Ive decided to have a pop at Platform first and try and get them to cancel the eviction. Ive attached a draft letter which I intend to send them (based on some of your earlier posts, thanks Ell-enn:-)) ... any comments? are the Civil Justice Council Mortgage Arrears Protocols voluntary, and to they apply to all mortgage companies?

grateful for any comments, thanks guys!

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Hi all,

Im having a wobble about the letter now.. not sure if where Im at constitutes the 'start' of a possession claim, which might make my point about the Civil Justice Council Mortgage Arrears Protocols irrelevant.

The document can be seen if you google it (I cant post links for some reason)- see 5.7

Any thoughts?

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Hello all

Managed to quell my nerves, I modified the letter slightly and faxed/posted recorded delivery to them a couple of hours ago. Itll be interesting to see their response.

Feels like a bit of a wing and a prayer at the moment... any comments appreciated!

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Hi there, apologies - the internet at work was down today and I couldn't access the forum. If you still need to submit anN244 please let me know and I'll help with the statement.

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When are you planning to submit the N244?

 

To go with the form you will need:

 

Budget sheet

Copy of your new job offer

Copy of the letter you sent tofay

Any documentation relating to your wife's illness

Help us to keep on helping

Please consider making a donation, however small, if you have benefited from advice on the forums

 

 

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Hi there, it would be best to wait a few days to see if you get a reply to your letter. We can get everything ready to submit the N244 in the meantime.

 

Is the mortgage in joint names?

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If you can take it to the court on Friday you should be able to get a hearing early next week. If you make the £2,021 payment before the hearing it will strengthen your case and I don't think you will have any trouble getting the eviction stopped.

 

How much are they claiming the arrears are? have they added any charges to your account each month for being in arrears?

Help us to keep on helping

Please consider making a donation, however small, if you have benefited from advice on the forums

 

 

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My advice is based on my opinion and experience only. It is not to be taken as legal advice - if you are unsure you should seek professional help.

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