Barclays / Woolwich Mortgages / TLT Solicitors

[Lea_HTH]

Her chances of retaining her home are excellent, if what you have stated is true and accurate. So long as she can prove to the court at any future hearing, that she maintained payments as agreed in court when the adjournment was granted and that there has been no increase in the arrears since that date, the judge is simply going to adjourn the case again.

 

She needs to attend the hearing, and you should assist her in putting all that you have written here into a defence statement to the court. Include a detailed summary of the payments made since the last court hearing, showing how each payment has reduced the arrears amount each month and that no payment has been missed or was paid late.

 

Barclays are almost certainly just using their liberty to restore option, which they have to exercise within one year of the last hearing. If they cannot gain possession, then they are probably hoping to have a further adjournment with liberty to restore, which means they can do the same thing again next year. Their actions, IF what you state regarding all payments made etc is true, are an abuse of the justice system. There is no reason for it, other than to stop themselves having to re-issue proceedings from the start.

 

If it goes to court, and the judge wants to give them liberty to restore, object to it. Point out that the agreement made previously has been adhered to and that there was no need to return to court at this point and that you respectfully request that the case is adjourned generally (with no liberty to restore). You may not get it, but at the very least if they do this again next year when your friend has stuck to the agreement, she can point to very obvious abuse of process and/or harassment.

[Lea_HTH]

First, you should be able to offer your friend lots of assurance that things will be fine, because if what you state is true, there is no reason at all to restore this hearing. It is plainly wrong.

 

The mortgagee will need to provide details of why they are claiming. Stating 'arrears have increased' is insufficient, they will need to provide statements of account to prove their point. If they can't, then they're not going to get any further. Paperwork should be forthcoming from the mortgagee's solicitors, and if not from them, definitely from the court - they will include a particulars of claim which should provide full details of their claim.

 

As soon as your friend receives the paperwork from court she must put in a defence and provide her proof that the allegation that she is behind in payments is untrue. She should show proof of all payments (bank statements etc).

 

The blip in her payments in June is immaterial if she was already 200 pounds in advance. She need not worry about that. The payment schedule she should produce for court will show how far in advance she was on her agreement. The suggested format should be a column for CMI, a column for the arrears, a column to show the arrears reducing, and a final column which shows what the arrears would have been if she'd simply paid the amount they asked her to pay - the column showing the actual arrears at this date should, of course, be slightly lower than the final column as she has made more payments - but so long as it is not more than that column, she will be absolutely fine when it comes to court.

 

She should provide all the letters she has received regarding any issues with payments, as these will show that they were not her fault, e.g delays due to snow and errors on their part in applying payments to one account and not all three.

 

Your friend's case, based on what you have written, seems certain not to change even with another court hearing. She may wish to write to Barclays/solicitors and inform them that she intends to defend the claim and claim any expenses she incurs in doing so as there is no valid reason to bring her into court.

[Lea_HTH]

They have said that as a result of her arrears increasing that they will take penalty fees of £40 per month, backdated to April 2011. They will also charge their court fees, solicitors fees and administration fees for having to take the case back to court.

 

They have also indicated that they want immediate possession of her house - no mention of asking the court for a suspended possession order (which would be bad enough).

 

If she is not behind on her agreement then they should not ask for their legal costs - object if they do.

 

If she is not behind on her agreement they cannot charge her for being in arrears without an agreement in place. They have to PROVE their case when taking someone to court - if she has evidence which disputes it, they can't ask for her to a) bear their costs of bringing her to court (they should have checked properly first) and b) charge her for not having an agreement in place as this would patently be untrue.

 

Unless her arrears have in fact increased (and they cannot claim their charges are 'arrears' in court) then I cannot see any reason why any reasonable judge would make an order, either for possession or suspended. I think it would be reasonable to adjourn again - she hasn't done anything further wrong since the last time they brought her into court, if what you say is accurate.

 

You can request an adjournment on terms - agreement that she will pay CMI plus X amount towards arrears (as she has already been doing).

[Lea_HTH]

How much are the arrears, and what is the term left on the mortgage? That will give some idea of whether the offer of 120 per month is reasonable, or acceptable.

 

They can refuse any offer if they so choose, but the courts will not be happy if they have been unreasonable. They don't have to give a reason, but to not do so would be unreasonable. The court take a dim view of unreasonableness.

 

I think the issue here is a) have the arrears come down in line with the amount she was asked to pay at the adjourned hearing, b) have the payments been made on time, c) will the arrears be paid off within the term of the loan.

[Lea_HTH]

If the arrears were at 7055 in September of 2010 - then at 100 per month (if first payment was in October) they should be reduced by 1100 (11 months) (5755), if first payment was September, then 1200 pounds (5855). The current arrears stand at 5770.47, which is either above or below the terms agreed.

 

One figure shows she is above the agreement, the other that she is behind. You need to calculate carefully.

 

Under case law (Norgan) the whole of the remaining term of the mortgage can be used to clear the arrears if needed. By her proposal, the arrears will be cleared in 4 years and 10 months. This is good news.

[Lea_HTH]

As indicated previously, if everything is in order as you have described in your posts here, I cannot imagine any judge awarding them possession at this stage, not even a suspended possession order.

 

She has not only kept to the agreement she made at the adjournment, but she has also paid a little extra. There would be no reason to grant an SPO at this stage. Only if she was behind with the agreement would an SPO be the most likely outcome.

 

She could continue to pay the 100 per month, as that is what she agreed to, it is what the court recorded, and her income/expenditure hasn't changed - she should do an I&E if she hasn't already done one to show to the court. If she can afford 120, fine, go ahead and pay it, but my suggestion would be to continue to pay 100 and pay additional amounts when and if she can afford it.

 

The mortgagee is always at liberty to try to renegotiate any agreement, but if the finances aren't any different to a year ago, and she can prove that, then the court will go with what has been offered.

[Lea_HTH]

The only recent development has been that late on Friday she picked up a message from Barclays on her home answering machine saying that they want to discuss her letter. And asking her phone an 0870 number. In her letter she had asked that they write rather than phone so that there is a written record of any communications.

 

Lea - thanks for your help so far - the spreadsheet showing the payments made etc will be done this week. Would you like me to pm it to you?

 

There's no need to send me the spreadsheet. Just ensure that you have included every payment made and that it correlates to what you have been saying here - i.e. that she has not missed any payments and has regularly made all the payments she agreed to make.

 

With regards to them requesting that she call them, this is standard practice. It is safe to ignore it. She has already told them she prefers to deal with matters in writing and she is perfectly entitled to do stick to that - and so long as she responds to any letters they write then they have no reason to want to discuss anything on the phone with her. The tactic is well known to persuade people to offer to pay more than they can actually afford, so all good advice will be to get everything in writing and keep it that way. It is evidence a judge can then look over should the need arise.

 

You are doing a fabulous job of helping your friend. She is very lucky to have you helping her.

[Lea_HTH]

Is there an actual hearing listed? Did the court notify you of this date?

 

I think that the mortgagee is just using delaying tactics - they probably won't expect your friend to be as well prepared as she is. Their problem is that in delaying giving you the paperwork, they won't receive her paperwork (i.e. her defence) which would probably make them withdraw from the court hearing.

 

She should contact them and demand their particulars of claim - she is entitled to see the exact details of why they are taking her to court, including any details about how they claim she has fallen behind with the agreement made.

 

She can put her defence form in a couple of days before the hearing - she should add the fact that she was awaiting their particulars of claim as she was not completely clear, having not received it, what she was supposed to be defending. She may well receive it a day before the hearing - if that is the case, she should certainly bring that to the judge's notice.

 

I don't think she has anything to worry about to be honest. If all her payments are up to date, and she is in fact 120 quid ahead of where she should be, then absolutely nothing can, or should, happen other than that the judge adjourns the case again.

 

Restoring a case doesn't mean they do not have to provide information - they appear to be stating the arrears have risen, and the burden is on them to show this. The court should not hear a case on the basis of year old information when the defendant has done precisely what was asked of them.

[Lea_HTH]

How are they proposing to obtain the adjournment? Will they attend or simply send a letter? My advice would be for her to attend, either way. After all, they told the court that the arrears had risen, and they hadn't, so I wouldn't trust them not to go into court and request an adjournment with liberty to restore again and then do this all over again next year, just so they don't have to start proceedings from the beginning if she does default (or clearly, as in this case, even if she doesn't!).

 

She should attend and ask the judge for the case to be dismissed as she has stuck to the terms rigidly and is even slightly ahead of the agreement, the arrears have come down accordingly, and the restoration of the hearing was requested under a false statement. She should point out that giving them liberty to restore for another year will be unfair as she has not deviated from her previous agreement and they still restored the case even without reason.

[Lea_HTH]

Thank you Lea - you raise some very good questions. It had been in my mind to attend anyway, in case they decide to ask the Judge for something other than an adjournment! How should she go about it? Perhaps a statement for the court? Thanks for your help so far - I cannot tell you how valuable it has been in enabling me to offer some reassurance.

 

Write a brief statement to the court, indicating what you have said here, include a schedule of payments showing the arrears have reduced, and request that the judge dismiss the matter as there was no reason to bring her back into the court as she had stuck rigidly to the previous agreement and not defaulted at all - and in fact, is even a little bit ahead.

 

She should raise the issue of liberty to restore, as sometimes the judge will add it to the adjournment without mentioning it - she doesn't want it there at all, so she should ensure she makes reference to its unfairness and, once again, point out that she has not defaulted.

[Lea_HTH]

Lea, many thanks again for your help.

 

She went to the court this afternoon, and I went with her as moral support. With a statement for the court, which she handed to the Usher. She was not called and did not see the judge at all. He simply sent a message saying that he was "adjourning the case indefinitely" and that in due course she would receive the papers from the court confirming the decision.

 

So not sure where she stands right now, to be honest? It looks as though the Woolwich may have got an adjournemnt with liberty to restore? No doubt time will tell.

 

Is there anything she should be doing now - apart from continuing to make the agreed payments of course.

 

Once the court sends the paperwork, check it thoroughly. If it makes no reference to liberty to restore, then it has not been granted. If it does make reference to it, then I would suggest your friend write to the court, point out what she presumably said in her statement as per our discussions in this thread, and request that there be no LtR.

 

But, having said that, from the message sent back to you, the case has been adjourned generally, which means nothing further is going to happen at this time and if they do wish to restore the hearing they will have to start again from the beginning. I very much doubt anything further will occur, but do read the paperwork from the court thoroughly when it arrives just to double check.

[Lea_HTH]

She has received a copy of the court order, which says "adjourned generally with liberty to restore before 31st March 2012, when claim will be struck out".

 

So not a disaster (I hope) but not quite what she asked for.

 

I would like to say a huge thank you to Lea and Ell-enn for your help and support in this.

 

You're welcome - I do hope your friend has been grateful to you for all your help too...she's lucky to have you.

 

It's not what she wanted, admittedly, but it's not all doom and gloom either as the judge clearly recognised that another year would be too long and decided on six months instead. That's a plus. It sounds as if your friend will manage to stick to the agreement in any case and come March the liberty to restore will be gone. Watch out for the mortgagee playing the same card again in January or Feb though, they may well think they can gain another 6 m LTR and if they do try that, you really do need to attend the court and object in the strongest terms - and make a counterclaim for costs arising out of defending action that clearly need not be brought.

 

In the meantime, hopefully your friend can relax and enjoy her home.

[Lea_HTH]

Thank you again Lea.

 

The same thought had crossed my mind, that they try the same strategy again, and try to bring the case back to court before the 31st March.

 

It is strange, but reviewing the correspondence and phone logs, it does give the strong impression that it is quite "personal", and that they are rather miffed that they did not get possession of her property, or a suspended order first time round. One of their representatives even suggested that debtors need to be punished. If so, it is extremely odd that an international banking group could be conducting a personal battle with a single lady.

 

But that is by the by. She still feels uncomfortable, but is concentrating on making some money and getting this problem laid to rest by clearing the arrears.

 

Thanks again for your help Lea.

 

Trust me, it isn't personal. It obviously feels like that as to you, and your friend, it IS personal, but the staff making those phone calls don't care one way or the other. They are employed to do a job, which includes mercilessly chasing after arrears on the accounts, some of them behave as if it is their money, but it's a method of doing the job - it really isn't personal to any one individual debtor. Most debtors feel this way - you just have to read the threads on here to find that out.

 

That aside, as I said previously, if they do instigate proceedings again before March your friend must insist on a hearing before the judge and put in a counterclaim for the cost of defending the action again. They really should not keep using the justice system as a stick to beat someone who got into difficulties but made an arrangement and stuck to it rigidly. That is not what the courts are there for and they will take a dim view of a claimant who does this repeatedly.