SPML / Acenden Court Action

[lubee7274]

I am wondering if you could advise me

 

I have received a court hearing date for repossession of my house, the hearing is set for the 18 March.

 

The background the last year I haven't really taken responsibility for my debts etc as my relationship broke down and I was left on my own with two children. To be honest I can't remember much of the year due to medication etc. No excuse I know

 

I have finally pulled myself around and am able mentally and financially get myself out of this mess and start afresh.

 

I haven't replied to any court papers or lodged a defense yet as I wanted to be fully aware of what I was putting down.

 

To start with they have stated to the court I am in arrears of £3023.93, after reading this forum I realised that their "fees" were included in this figure. Therefore can I state on the form that I don't agree with this figure.

 

My contractual monthly payment has wavered between 345 and currently is 275 per month.

 

I have asked ascenden what the breakdown is and they state that my arrears are 2293 and my fees are 700. To be honest this doesn't add up either as with that figure I wouldn't have paid my mortgage for 2 1/2 - 3 years and i'm sure they would have had me in court before now when i have only had the mortgage ? They also charge 85 per when in arrears and 115 per month when in ligation so the fees should be more than this ?

 

I have put together a budget which accounts from school dinners, down to mot and road tax for the car and it is all detailed very clearly. With the breakdown I can afford my contractual payment of 275 and i have spare capacity of 80 per month. I don't want to offer 80 per month in case the libor changes and I need to be able to accommodate this.

 

I have spoken to them and they are insistent that I borrow money from family and friend to pay a lump sum or they will order repossession? I have offered them the contractual payment and 60 per month which would clear the arrears if they are what they say they are over 3 1/2 years but they have refused. Even so I will pay this on the 28th of the month and i have made this clear as it will help with my budgeting.

 

Hope above is clear?

 

I intend to go to court and propose this to the Judge, as I have had 3 estate agent valuations and even if I put it on the market there would be shortfall.

 

I haven't totally buried my head in the sand i have emails to prove that since November I have tried to contact them at least seven times by email to capalise the arrears, come to some arrangements but emails went unanswered or passed around, no straight reply. I will bring this to the judge as they have stated I haven't been in touch.

 

I do have questions,

 

(1) ascenden have said I have to clear the fees in addition to the arrears, are the fees paid out of the 60 or added to the term of the mortgage?

 

(2) Can I dispute the amount they have submitted to the court, as it includes fees and not just contractual arrears ? They are not very clear on how and what is what ?

 

(3) If i request a SAR, i won't receive the information before the 18th court hearing, could I later on contest the fees/contractual arrears?

 

(4) I can demonstrate I am now in a good position to support myself and two children, clear my arrears in reasonable time can asceden refuse this and say they want the house?

 

Any replies would be appreciated.

[Ell-enn]

Hi there, I'm assuming you have received and N11M defence form with the court papers? if you need help with the statement for Q.27 of the form, please let me know and I will draft one for you. We can certainly dispute the arrears amount.

 

Is the mortgage in joint names? how old are your children?

 

If your payment is an average of 345 and 275 then you could be 7 or 8 months in arrears - does that sound right?

 

If you have an income and can pay extra towards the arrears each month then there is no way a judge would give possession to the lender, and certainly not at the first time of asking.

 

When you fill in the financial questions in the N11M form, make sure the amount you want to offer towards the arrears each month is the amount left over aftereverything else has been accounted for (i.e. the difference between your income and your outgoings). Take a photocopy of the form and fill that part in pencil first so you can adjust the figures to get them right before completing the final copy.

[lubee7274]

Hi

 

7/8 months maybe to be honest I really don't know. I don't really know the state before he left, I just know I am now able to afford everything. I have done my income and expenditure on the excel budget sheet , i had to sort where my money was going and what I had coming and to sort my benefits out. I have included everything and I have 80 per month left over. I even have different bank accounts set up now for different bills. If I offer them 80 per month and the libor goes up i'll won't be able to meet the payments and contribution towards the arrears as I currently stand. What would I do in them circumstances, hence I was only going to say 60 per month and put the 20 aside incase this does happen. Ascenden have said that they are not accepting a payment plan, they will oppose this and they want the property.

 

I may have a payrise coming in the next couple of month but this is far from certain and I only want to work on solid facts and what I can currently afford.

 

Yes I have received the defense forms and I am able to complete these online, should I do this or submit paper copies.

 

I do want to bring to the attention that the figure they state is arrears AND fees if I could do that then thats wonderful.

 

My children are 8 and 6, were we live is close to the school, my childminders and family as I work full time and often am away on business I need this support to be able to continue to work. The property is in joint names, but my ex partner does not contribute and I can't find him to contribute for the children never mind any debt he has left too. I can afford to do this on my own now i just want the Judge to see this.

 

If you would help me with Q27 this is the question is how I came to be in these circumstances and how I can get myself out?

 

Any help or advice would be wonderful again.

[Ell-enn]

Hi there, I will certainly help you with the statement for Q.27. I think you are right that you should only offer £60.00 towards the arrears - you should divide the other £20 you have left over between say, housekeeping/lunches/petrol etc.

 

I will start to draft a statement for the defence form - although we have plenty of time to get the forms to the court (usually 10 - 14 days before the hearing is fine). I wouldn't advise filling them in online as you can't affix anything to the forms and it wouldn't be the first time a set of forms has gone missing this way - best to hand deliver them to the court if possible.

 

Just let me know what you need help with

 

 

In the meantime I think you should write to Ascenden outlining the payment proposal you have made to them and confirming you will be making the first payment on 28th February - (I can draft a letter for you if you need me to?). If we include a copy of the letter with your defence then the judge will see that you have tried to reason with them. It would also be helpful if you had a recent payslip or some form of confirmation of your earnings so the judge can see that you are able to afford the mortgage.

[lubee7274]

Hi Ellen

 

I have sent an email to both SPML and Ascenden yesterday, I am dealing with Zoe at Asecenden and told them that I am not happy that they are encouraging me to borrow more money, I have outlined my proposal of contractual payment plus 60 per month and confirmed I will pay this on the 28th of each month. I would like a more official/better worded letter to back this up though if you think it would help.

 

I have also telephoned SPML last night and asked for an official breakdown of what they state the arrears are, for example what are arrears and what are fees ? I again told them my proposals they have said they will confirm this in writing to me and that they also reject this offer and are going for a full repossession order. If I don't receive it by the end of the week I will email them again.

 

The arrears haven't been one solid block but erratic when I've had to sort benefits out, when I was off sick with stress/depression from the relationship breakdown, or previously when my ex partner was sorting it all out. Hence I'm not too sure what the actual arrears are. I also informed them that my ex partner had left the property.

 

Can I show the judge that while I got my finances in order I tried to email and ask for arrangements to be made and have emailed numerous times and got limited response or no response, I have the emails and acknowledgement or no replies

 

John Bentham / Scott Taylor – SPML on the 25th August, 1st September, 13th September

17th September

21st September

16th December

Glenister Solictors 16th December

7th January 2011

10th January 2011

TLT Solictors – Zoe Hedger 17th January 2011

21st January 2011

26th January 2011

7th February 2011

 

I'm not trying to dwell on the past as its what got me in this situation but I have tried to tell them of my circumstances and asked for other possible routes as interest only while I was sick , sorting benefits and to add my arrears/fees to the account and they haven't replied.

 

I can get a letter from my employer stating my earnings and that it is full time permanent ongoing employment with no possibility of redundancy if this will help prove a secure income rather than just a wage slip ?

 

With regards to the forms, I'll have a look tonight, the only part at a quick glance, is i'm reluctant to tick I agree with the arrears amount, because I don't, for starters it includes the fees and I want to know exactly where the arrears have come from. If I tick no will this look bad ?

 

I won't fill the forms in online, my court is only round the corner and I can pop them in no problems.

 

I really need all the help i can get, I want to keep the house as I don't want my family any more disrupted than it has been.

 

Best Regards

 

Lubee7274

[Ell-enn]

OK, if you can print out the emails you have we can also include them in your defence. The letter from your employer will also be helpful. I'll draft a letter for you to send to them and affix to this thread shortly. If you don't agree with the arrears then you should tick No.

[lubee7274]

Thanks ever so much Ell-enn, I tend just to say things as I go along and no structure to them.

 

Yes there are no problems with the emails or the letter from my employer.

[Ell-enn]

I'll have to do the letter this evening I'm afraid - I'm at work at the moment and have just been advised of a meeting I need to attend.

[Ell-enn]

Hi there, affixed is the letter, make sure you send by either special delivery or recorded delivery and keep a copy for yourself. Check on the royal mail website a few days after posting to print off the signature receipt - keep that safe with your copy of the letter - we will enclose a copy with your defence.

 

Did you use the budget sheet from this site? make sure the £60 you are offering towards the arrears is the amount left over after everything else has been accounted for i.e. the difference between your income and your outgoings.

lubee7274 letter.doc

[lubee7274]

Hi Ellen

 

Thank you very much for that.

 

No I didn't use the budget sheet, just one i'd made up, but after seeing your advice i'll transfer the figures into that spreadsheet. I'll trawl through the threads looking for it.

 

I'll send the letter recorded delivery today, shall I send to both ascenden and smpl?

 

The statement you ask for in the letter, I am guessing that they will charge me for this ? Would it also be worth sending off the SAR to get a better picture or do you think i'll be rocking the boat on that one ?

 

Your advice is most appreciated.

[lubee7274]

Good Morning,

 

Following on from the above I submitted my defense for the court hearing which is scheduled for Friday.

 

Last night I received the following from Acendens solicitors, i will be attending the hearing on Friday, as the arrears amount is not TRUE arrears it includes charges they have applied to the account. I have brought this to the attention of Ascenden in the form of a complaint on the 18th February although they now saying that wont be able to respond until the 20th April ? I have also asked for a complete breakdown of how they came to the arrears figure, and as of yet they have not provided myself or the court with this, just the payment schedule since November 2010 showing what the payment should of been.

 

I am not disputing that I am in arrears but I am unsure of the amount and before the court agrees I would like to be very clear about this, also with the view of claiming back some of the charges applied to the account eg 115.

 

Would any of you be kind enough to look at the solicitors response below and let me know what you think ? It seems to be that they are a little desperate but I don't know why, the judge hopefully will endorse my proposal on Friday, especially when I take along the below, but why do they want to know if I am going to persue the charges ?

 

Any advice would be very very welcome :

 

Dear ***

 

I know you have been corresponding with *** about the Southern Pacific Court proceedings. Can you correspond with me from now on please? I now have the file.

 

As you will know, there is a Court hearing this Friday morning. The Court has sent me a copy of your Defence which includes details of your financial situation and I have received an update from Acenden regarding payments that you have made towards your account.

 

Acenden have told me to confirm to you that a payment arrangement whereby you pay your usual monthly instalments plus £60 each month towards your arrears is acceptable, so I am hoping that we can deal with Friday's hearing by agreement. If so, you may or may not want to attend the hearing. We will ask the Judge to endorse the payment arrangement in the Order.

 

I know that you have raised issues about the administration charges that have been added to your account. Can I say two things about that. Firstly, no charges are added if you keep to an agreed payment arrangement, so hopefully there will be no further charges added. Secondly, the charges that Acenden has added to your account are charges that the mortgage agreement allows the Company to levy. They were set out in literature that you were given when you obtained your mortgage. All mortgage companies add charges when a borrower misses payments because that is the fair way to cover the extra cost of dealing with accounts were payments are not coming in as they should be. As for the level of the charges, recent publicity about unfair bank charges has encouraged some borrowers to argue about fees added to their mortgage account, but to date no-one has successfully challenged the level of Acenden's charges. I am telling you this because you need to remember that legal fees that run up because of arguments about charges are added to the mortgage account, so the mortgage debt increases. Of course it is entirely up to you whether you continue to object to the charges, and if so I would certainly encourage you to get proper legal advice from a solicitor.

 

Can you please confirm to me: (a) that the payment arrangement is agreed so that the Judge can endorse it within the Order, and (b) if you are going to continue your objection to the charges. You can either email me or call me on:-

 

Regards,

 

 

Many Many Thanks in advance

[lubee7274]

A quick update

 

Just back from court! The judge granted a suspended order and agreed to include that the payment will be received on the 28th of every month (much to Acendens Representative disaapointment) and whilst this order is in place and being maintained that no further charges should be added to the account.

 

Their legal representative was adamant that my outstanding balance was 30,000!! more than it was and I challenged this and she had to admit that she had got it wrong.

 

I did put forward to the judge that arrears amount contained charges and I have asked for a breakdown but they have yet to provide this "stating that they are waiting for information". The judge said that he understood and asked Acendens representative for a balance for contractual arrears vs charges and she said she didn't know either. He went onto say that I could postpone the hearing but he would recommend putting the order forward and then I should clarify this directly with Acenden the financial services and its only a small cost if you want to go through court again But he has no problem adorning it today.

 

I said I would prefer to put the order forward as I more than happy with that and it will stop any further charges being accrued and that I wanted to obtain all the information I can before challenging the charges.

 

So a successful day! The judge was very nice. The representative for Acenden was well .... a prat.

 

When we got outside the representative for Acenden said to me in the waiting room in front of people and also the security "I don't think that by challenging the charges you will be financially better off" my reply was "that maybe so, i am entitled to a full breakdown of what, why and how and your legal fees also, as I for all intents and purposes am i paying your wages! and I will know exactly how they have added excessive charges and I intend to make life difficult for them as they have me."

 

I felt so proud of myself, and the security guard smiled at me

 

Thank for everyones help.... next job to look at these charges so hopefully I will keep this updated.

[Ell-enn]

Well Done! excellent news make sure you keep at them for the charges info.

[lubee7274]

Hi Ellen

 

Just a question, when I receive the SAR information back from Acenden I presume I will receive a copy of my original mortgage contract as this was something that Acendens Representative was quoting today and couldn't provide, the judge was not happy about this. Can i also ask for a copy of their arrears procedures etc ?? Or is this pushing it too far?

[iconoclash]

Hi - they should have provided a full and detailed statement for both sides at the hearing to include all the actual payments, the interest rates applicable, the charges made and when and what for and correct and true balances. Anything they provide that is not accurate must be challenged as these companies like creative accounting to imply higher amounts outstanding than actually are.

They should have sent you their procedures before starting court action. There are pre-action protocols to follow and court action should be the last resort. You are quite right, they should have produced the mortgage contract as this is the same contract on which they rely to impose their charges - on which you have a financial relationship with them and all terms and conditions relating to it are those that are now being employed against you. This is two way traffic - they must disclose and do not let them charge you for information either - you should get this info in your sar. Did you ask the DJ to look at their legal costs or is it open for them to add whatever they say to your mortgage account? You can ask for copies of their legal bills and ask a court to decide them - you dont want these attracting interest if they are added to the security. Hope thats helpful.