Warrant applied for please help CANCELLED

[kilkenny]

Thanks Ellen really appreciate all your help - will send draft statement over tomorrow. Can't tell you how grateful I am for your continued support

[Ell-enn]

No problem remember when writing your statement it's best to bullet point each item. Start with the most important information i.e. the court gave you time to complete the sale as an offer had been accepted. Then go on to your mortgage application and how the lender refused to confirm any details to your mortgage company - explain the "blackmail" and refer to the letters and emails. Then the FOS involvement etc.

 

Keep each point short and concise, and stick to fact.

[jansus]

Glad to see you are getting some practical help.

 

£10000 fees - disgusting!

[kilkenny]

We have now received eviction notice for the 28th September 2009. Does anyone know what form I need to use to file a counterclaim against the lender. My thoughts are that we have always just defended the possession proceedings to allow us time to sell but that we shoud have been filing a counterclaim against the lender for unfair terms, overcharging, and breach of mcob rules. I think I have enough evidence of breach of all rules and the fact that we have been locked in to the contract. Just need to know how I would go about this and what form I would use

[Ell-enn]

I think (and you should check this) that the judge can only deal with the facts of the possession claim i.e. are the arrears going to get paid and if so, when etc.

He can't rule on unfair charges or terms and conditions of the contract etc. You would have to do that as a separate claim and it wouldn't be heard before any eviction hearing - however, you would be able to show the judge you have served a court claim on the lender.

 

You have plenty of information to put in a N244 defence against eviction though.... as we said before your efforts to bring about clearance of the arrears is being frustrated by the lender's "blackmail".

 

Ell

[kilkenny]

Ellen thanks once again for all your support. We filed a witness statement application and skeleton argument. Had hearing on Monday. Judge told the lender he had to talk to us and could not believe what he was reading. He has suspended the proceedings to the 1st available date after 3 months and wants us to send in the FOS report and update from what the FSA are doing. Can't quite believe it. He also told the solicitor for the lender that they had to start talking to us. They still haven't.

[jansus]

so pleased for you - some breathing space at least. Hopefully you can contact the FOS and FSA and tell them they only have three months to get your situation sorted . At the moment it looks like the bully boys are not yet winning.

[kilkenny]

Thanks for all your support. Last 2 weeks totally terrifying but feel like we have won another battle. Will keep you updated. Thanks again without this site would have gone under.

[kilkenny]

Hello

have been helped many times by this site. We have a possession order on our house which was stayed by a Tomlin Order on the basis we would pay all the sum due by the 16th June 2010. We haven't been able to sell and the lender will now apply to evict us. Does the lender have to reappy or can he just issue a warrant without notice to us.

[kilkenny]

Hi - I have posted this in repossession forum but no replies. I signed a Tomlin Order to stay repossession on the basis that I could sell my house. It hasn't sold and I believe the lender will start enforcement action. Do they have to write to me and let me know or can they just apply to evict.

[rhodium78]

Normally it is done by an application to the Court to enforce the schedule in a TO.

 

I would contact them and see if they would be willing to grant you some extra time. Don't forget that once they get possession, they will sell it as cheap as possible to get their costs quickly so it might be worth your while to consider whether you want to sell it for slightly less than the market price.

 

Off topic, I am sorry that you are in this position and wish there was something we can do for you.

[kilkenny]

Thanks we would sell it for anything we can get but we can't even get an offer. A seven day buyer would not pay off the mortgage so don't know what else to do.

[rhodium78]

Well, at this moment in time, I would concentrate on selling the property. They still have to jump through some procedural hurdles to get the house and there would be a court hearing at some point so you can oppose the application and ask for some more time anyway.

 

Once it hits the legal stage, then we can take a look at it but I would try and communicate with the opposing side.

Edited July 2, 2010 by rhodium78

[kilkenny]

To be honest communicating with the lender is a big no. It a whole long story but to cut a long story short when they originally went to reposses us they had miscalculated the interest and added on extortionate charges they were approximately £20,000 over. We had a house swap going through but because of their miscalculations could not complete. When we complained they refused to communicate with us and would only do that through their sols who charged us £145 per letter. it went on and on and got worse we went to fos and they took 14 months to tell us we were write all along but by that time it was too late and we had lost our sale. There is loads more and the company have been referred to enforcement by the FSA and are presently closed. They use every trick in the book. We signed the Tomlin order two days before xmas after they told us in no uncertain terms what the consequences of us trying to claim damages against tem would be. I am glad to note they will need to have a hearing as I thought they could simply reapply for the warrant. Ellen and others have helped us a great deal staying eviction on two occasions even the Judge said he didn't want to give them the order but had no choice under the law and property act. Apparently a lenders action even when they threaten you to sue them for damages for going to the fos means nothing in a repossession case. This has been going on for over 2 years.

[rhodium78]

Now that is a tale of woe and puts things in perspective on a lot of levels. To enforce something in a TO, it is normally done via an application to the Court. That could be done via a hearing or a non-hearing. You *should* receive a copy of the application before the hearing if elected, if not, you should receive a copy of the application anyway but it has been known for opposing counsel to mislay the copy destined for you.

 

If they don't ask for a hearing, then you can oppose that application and ask for a hearing in itself. The Court has the power to stay the proceedings for as long as required so all is not lost. Just concentrate on the sale of the house and seek legal advice from a specialist in property law and finance if you can. Alternatively, seek advice from CAB. It's best to try and know what the options are before you stuck between a rock and a hard wall.

[kilkenny]

Thanks - We went to a solicitor who said we had a case of fradulent misrep on the mortgage. She applied for full legal aid but his was turned down as we still have equity in the property! It seems we can fight it after we are evicted as we will then get legal aid. I have managed to defend it so far with the help of this site Ellen in particular and will continue to fight. Have reduced the house price to just over what we need to pay the mortgage and leave us a bit to rent. Will keep you posted. Thanks

[exasperated]

Hi,

I dont know much about this but at least this reply will bump your thread,

What i do know is it is a form of consent order. The order permits either party to apply to court to enforce the terms of the order, avoiding the need to start fresh proceedings. The terms of the schedule do not form part of the court order, so may remain confidential, and can include matters outside the jurisdiction of the court or the scope of the case in hand. Any provisions in a Tomlin order which require action by the court, such as releasing funds held in court, or an order for costs, must be included in the body of the order, not the schedule. Until a second order has been sought, it is not possible to apply to commit the party in breach for contempt of court

[14grange]

A developer has got a judgement on me because I failed to complete a purchase of an apartment. I agreed a fair settlement with him and everything was fine. He sent the agreement to my solicitor I signed it and sent it back with the amount agreed but the cheque was never cashed. I phoned him and he said the deal was off and he was seeking full judgement. The letter of settlement he sent to me was from the London court as I understand this is aTomlin order this is a court order setting out the terms of settlement . Even though they never signed this agreement can they still pull out. They also had sent me an agreement by email outline their acceptance of my offer. Any advice would be appreciated.

[postggj]

did you agree and sign the tomlin order

 

a tomlin order is very bad news and i would sugest you talk to a solicitor

[14grange]

I signed the Tomlin order and sent it back with a cheque. Would I have a case if they didn't sign it ?

[postggj]

i would think so

 

a tomlin order is an agreement between the two parties and actioned by the judge

 

did you get anything back from the court accepting the tomlin order or was it ever put in front of a judge

[14grange]

I thought it had to be sent to the court first and then sent to the developer and and myself for signing. The developer as far as I know never signed this.

[postggj]

as its not signed by the developer then i would think the tomlin order is invalid.

 

i would take a free 30 min consultation with a solicitor to confirm

[14grange]

Thanks for your replies.

[kilkenny]

I have been involved in an ongoing battle with my lender for past two years. The FSA are involved and recently posted a restriciton of the FSA register which says this lender cannot issue or prepare to issue possession proceedings, evict anyone or sell a property they have repossessed. We are fighting repossession in Court - they have tried to evict us many times. Does anyone know how the Courts stand if the FSA say a lender cannot repossess. Do the FSA have any power over the Court and can the court ignore the FSA?