Lloyds TSB REpo: Help requested **Case DISMISSED**

[Micah Clarke]

Hello Everyone,

 

I'm hoping someone might be able to assist me.

 

I was in trouble with my residential mortgage (LLoyds-TSB Bank plc). and built-up several months of arrears. Eventually, the lender issued possession proceedings. A couple of days before the hearing, I cleared the arrears in full using a CHAPS payment.

 

I then asked the lender to discontinue the claim.

The lender and the lender's solicitors said that instead they would apply to the court to adjourn the claim generally with liberty to restore.

Their grounds for this are that because I only made the payment two days ago, it has not cleared.

They added that they would not attend court,

although I am not sure whether in the end they did

- I am certainly aware that such assurances cannot be relief on.

 

In response,

I sent a fax to the court (and copied to the lender),

pointing out that I oppose an adjournment because the arrears have been cleared (I sent them a CHAPS payment, not a cheque!),

and I had made new payment arrangements with the lender (including a DD) going forward.

I also rebutted some more minor points in the lender's Statement of Claim which are not true and which have a bearing on the situation.

 

I actually did attend court on the morning of the hearing.

Unfortunately, I got stuck in traffic on the way.

I did warn the court, by ringing in advance, and I arrived about 15 minutes late.

I was assured it would be OK.

It's not a busy court

- it's in a market town,

and I was the only litigant there when I arrived.

 

The usher seemed to be expecting me,

and said that the judge had told her that there was no need for him to see me,

because I have cleared the arrears and he has therefore just adjourned the case.

 

I said I am not happy with that because I wanted the case dispensed with there and then.

I do not want this hanging over me.

The usher then went to see the judge again.

She seemed afraid of the judge and came back and said that he would simply not be seeing me.

 

At this point,

I was quite angry inside (I didn't let it show),

because,

rightly or wrongly,

it seemed to me that the Judge was being arrogant in that he was going by the copybook,

had made up his mind,

and was not willing to give me a hearing.

 

Of course,

the adjournment in some ways is a favourable outcome (better than suspended possession),

but my side of this is that I have cleared the arrears in full,

therefore the lender's claim has no basis.

 

I have done my own research on this,

and it would seem that I can apply for a re-listing of the case.

 

However,

not having any experience,

I am unsure whether that is a reasonable way forward,

or whether I would simply be wasting my time.

 

Does anyone have any advice on whether I should apply to have the case re-listed,

with a view to having the judge's decision set-aside?

 

I would also like to know whether I should apply for an indemnity costs order.

This is on the basis that the lender should have discontinued the claim,

as they had received payment of the arrears,

in full,

at least 48 hours prior to the date of the hearing,

during which period I was communicating with the lender's solicitors by e-mail.

 

It was quite clear they had the ability to discontinue the claim,

and chose instead to apply for an adjournment,

despite my protestations.

In addition, is there a viable complaint route with FOS?

 

Thanks to anyone reading this who can offer constructive suggestions.

[maroondevo52]

Hello and Welcome,

 

I'll move this thread to a more appropriate forum and ask Site Team member Ell-enn if she can help you.

 

Regards.

 

Scott.

[Micah Clarke]

Thanks - if I've posted to the wrong forum, then I apologise.

 

Will someone be able to inform me where my query has been posted to, so I can pick up on any replies?

 

Thanks again,

 

Found it now - thanks for the PM.

[newstarter]

You could appeal this on an N244 asking for the order to be set aside,stating as your defence that the arrears have been cleared therefore the lender has no claim on the property.I suspect your lenders reps have done this because"at liberty to restore" would entitle the lenders reps to restore proceedings if the payment had not gone through or you defaulted on payments in the near future,usually if no claim to restore has been made by either side within 12 months it would be disimissed anyway by most judges,if i were you i would go down that route and get it quashed as you quite rightly say you dont want it hanging over your head for the next 12 months,fill out an n244 hand it in to your local court,get a hearing date and get it quashed.

Edited December 15, 2010 by newstarter

[buzby]

The reason why the claimant would want this is not because the funds had not 'cleared' (when they had), but on the basis of your previous payment history. By doing what they did, they effectively have you by the short and curlies should there be any delay with any subsequent payment. Neither would I provide a DD, as even with one if THEY do not take the correct payment the obligation remains with you as you are in default, through no fault of your own.

[Micah Clarke]

Thanks newstarter

- my concern is whether there is really any point.

 

Without wanting to get political about this,

it seems to me that the whole attitude of the people at these courts is just to do things by the script and not rock the boat.

 

If,

as I think you imply,

it's normal procedure for lenders to ago for a general adjournment with liberty to restore, then I may just be seen as a naive layman flogging a dead horse.

 

I'm also concerned about aggravating costs and exposing myself in that way.

On the other hand,

I guess I could argue that,

if anything,

it is the lender who has exposed both parties to additional costs by not discontinuing the claim when the arrears were cleared.

 

Thanks buzby

- Yes,

I appreciate their real reason for this is so that they can fast-track proceedings in the future.

 

However,

in their correspondence to me,

they gave lack of clearance of the payment as the basis of an adjournment rather than ending the claim now.

They expressly state this in their letter to me.

This is why I feel I may have some ammunition.

[newstarter]

I would if i were you because as i already stated above,you really dont want this hanging over you,however having said that,you ask,"is it really worth it"? if your not going to default in the near future then of course you could just do nothing,you wont loose your home,nothing would change really,the lender has not got a possession order,all thats happened is court action been ajourned,if there is no default and payments are made on time,then nothing would happen.The problem i would have with this approach is ,what happens if you do experience difficulties in the future?remember,your lender is at liberty to restore as well as you.At least if the action was quashed they would have to start again from square 1,and believe me this could ,in the event of a default buy you some valuable time.

[Micah Clarke]

Thanks newstarter. I'll go for it and let you know how I get on!

[newstarter]

go get em !!!!!!

[Ell-enn]

Did you receive anything in writing from the court following the judge adjourning the hearing? You might find that there is an expiry date on the liberty to restore and if you bide your time (and save the £75.00 for the application to court) it will lapse.

 

Rather than go in all guns blazing - find out if there is a time limit first.

[Micah Clarke]

Good question

- the time limit is 15 December 2011

- the hearing was only today, and so it looks like he put this down for the standard 12 months.

 

As I say,

it's gone through on the nod,

and what with my bad luck turning up late for the hearing ,

he's gone by the copybook and took my lateness as an opportunity to avoid seeing me.

 

I suppose judges do what they can to avoid angry customers just like everybody else,

but whether it would have,

or will make,

much difference at all,

 

I'm a bit sceptical.

And £75.00??

Jesus on his moped.:

To be honest,

the whole thing looks like one big criminal racket.

They get to thieve your house,

and you pay 'em in the process.

 

thanks for your support - it's welcome advice, and it's always good to bounce these things off someone.

[Micah Clarke]

Hi,

 

I posted on here a few weeks ago.

This post is purely to relate my experiences,

as a 'thank you' for your help.

 

At this stage, I do not need any further advice, but I hope my 'story' is informative for others.

 

Briefly,

the background is that there were substantial mortgage arrears,

which I settled in full prior to the hearing.

 

I turned-up for the hearing,

intending to apply to have the claim dismissed on that basis.

 

The lender didn't turn-up,

but faxed the court beforehand requesting an adjournment with general liberty to restore.

 

I saw this fax the day before,

and I sent my own response into court before the hearing,

pointing out there was no further legal basis for the claim and so it should be dismissed.

 

I still believe that is the correct position,

but I also understand that it is common place for judges simply to adjourn generally in these circumstances,

and that judges work on 'automatic pilot' in this respect.

 

Thus, when I turned-up for the hearing,

the judge refused to see me,

on the basis that he had already adjourned the case in accordance with the lender's request.

 

This is really quite outrageous behaviour,

even from a judge.

 

I protested that I had a right to a hearing,

but as I have since discovered,

this little trick seems to be quite commonplace.

 

without any prompting from myself or the lender,

the judge then fixed a second hearing,

claiming that my fax response to the lender's solicitors had not been with the case file when he adjourned the case previously.

 

On the strength of my fax,

the judge set-aside his previous ruling,

and would now decide whether to dismiss the case altogether,

or re-adjourn on the same terms as before.

 

Unfortunately,

while this was happening,

I missed the next mortgage payment,

and the lender then faxed the judge and said that,

on this basis,

the claim should be re-adjourned.

 

I duly settled the arrears.

 

I then turned-up for the second hearing.

Again, the judge refuses to see me,

saying that he has already adjourned the case

- this was before the scheduled hearing,

and so totally unacceptable.

 

This time I was having none of it,

and made it clear to the court usher that I had paid-off the arrears,

there was no legal basis for an adjournment,

and I must be seen by the judge or I would be raising hell.

 

While I was waiting,

I was approached by a lay adviser who worked for a local Council-funded housing advisory service.

He tried to persuade me to go along with an adjournment,

saying that it would be better from a costs point-of-view.

 

His reasoning was that if the lender had to re-issue proceedings,

that would be another £700.00 in legal fees on my mortgage account.

 

While I could certainly see his point,

I just didn't see the logic in the argument as it relates to this type of situation.

 

A lender can re-issue possession proceedings at any time,

so long as there are at least two months of arrears. I

 

t's clear that if the law requires that the case be dismissed,

then it should be dismissed and the lender should be forced to go back to square one,

and follow the relevant protocol.

 

His view seemed to be that if you are two months in arrears,

then lenders just issue proceedings automatically,

but I know that is not necessarily the case.

 

I couldn't accept what he was saying.

However,

in his defence, while I didn't agree with,

or go along with,

his advice,

I have to say,

he was very helpful and I am glad he spoke for me at the hearing.

 

The judge was a pompous idiot.

Without an interlocutor,

I would have been bullied into an adjournment.

 

However,

his involvement took the sting out of the situation.

It was clear that the judge was used to walking all over home-owners and he felt I was putting him out.

 

In the end,

the judge had to follow the law,

and dismiss the case.

 

It was extraordinary how ungracious he was about it

- he even said,

"Oh well, since you feel so strongly about it".

[slgsue]

Well Done!!!! It just goes to show how persistance pays off

[Ell-enn]

Excellent - well done!

 

This is what I've always said - if there are no arrears there can be no case for possession, if there is no case then there can be nothing to adjourn or suspend, or anything else !

[Micah Clarke]

Yes, and thanks again for your help. It's not over yet, though....

 

What was very amusing was the look on the judge's face. It was obvious he didn't want to dismiss it, and to be honest, I nearly cracked-up when he said, "Oh well, if you feel so strongly about it". I don't know how I kept a straight-face - you've got to see the funny side, even in a serious situation like this.

 

It is equally obvious that neither the judge, the usher or the lay adviser are used to people standing up for themselves. It's clear the whole system is designed to cower people into submission, and it was interesting to note that whereas there must have been dozens of home-owners on that day's court list, only a handful were present.

 

I doubt there would be half as many repossessions if people took notice of CAG and similar sites and stood-up for themselves. Yes, we should repay money that we owe, but at the same time, these institutions agreed to these deals knowing the risks they were undertaking, and in my view, we should all enforce our rights to the hilt.