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I am wondering if someone from the forum could provide some help and advice. (apologies in advance for the length of this post)

History and Background

I am helping a friend who has run into problems with her mortgage. This wasa loan with the Woolwich taken out in 2003. The brief facts are that in 2008,she lost two contracts for her business and was on a severely reduced income.She has a mortgage with Barclays, which is divided into three loans.

During the next year, she tried to communicate with Barclays, asking if shecould temporarily move to interest only. Her letters went unanswered. Duringthis time she maintained payment of the interest but could not afford thecapital repayments.

As a result she built up arrears of £7155 across her three mortgageaccounts.

Barclays eventually began to communicate, but were totally intractable andsaid that they would not entertain any interest only arrangement. They sent adebt adviser round in April 2010, who was helpful, and put a proposal toBarclays to accept Interest only for three months and then normal payments ofcapital and interest plus £30 against the arrears. Barclays refused to discussthis.

In April 2010 and May 2010 she continued to pay the interest on the loans,and then in June resumed normal payments plus £30.

In June 2010 they issued a formal notice of reference to solicitors, showinga total debt of £114,000 (the property value is £180,000), with total overdueamount of £7447.99.

On the 15th July 2010 TLT wrote to her to make contact. Variouscorrespondence ensued, including an income and expenditure statement, and itwas agreed that she would make payments of the normal amounts plus £100 permonth against the arrears. This was confirmed on the mid August 2010. A weekbefore that had written to advise that proceedings for possession were listedfor 16 September.

Their letter said that "we have experienced some resistance from thecourt to grant a suspended possession order on cases where there is no writtenagreement from the borrower and the borrower does not attend the courthearing" - it went on to underline the importance of attending court andrequested that she sign a consent form. (which she did not do).

In the witness statement and the pre action protocol they had stated thatdespite attempts to make contact, no contact had been achieved, and alsounderstated the payments received in section 12, payment history. This resultedin their making a N244 application to the court to vary the witness statementand the pre action protocol to correct them.

Prior to the hearing, the TLT agent asked for n interview. As she was nervous, she had prepared astatement for the Judge outlining the events leading up to the court case,noteson the faults in the pre action protocol and the witness statement, and adossier of all of the correspondence, with three copies. He told her that giving that statement to theJudge would be very unwise as it would result in the case going against her,and in fact tore up the copy and put it in the bin. He also said that they would get a suspendedpossession order, that she would never be able to maintain the payments and shewould be on the streets by Christmas. But good luck anyway.

At the hearing in September the Judge was very understanding, gave thesolicitors agent a bit of a hard time over mistakes errors and lapses in thepreparation of the case, refused request for a SPO, and decided that the casewas to be adjourned generally with liberty to restore provided the defendantpays the current instalments and £100 per month off arrears of £7055.55 firstpayment by 30 September 2010. (she hadpaid that amount already in August).

Barclays made it clear that they were very unhappy with the result as they musthave the security of a suspended possession order in these cases.

Since then, she has made the agreed payments every month, with separatecheques for each account as there are different amounts due. She has managed to made some small additionalpayments. In February she wrote toBarclays asking that they consider capitalising the arrears, but received noanswer. In April she received a letterstating that she was in breach of the agreement as it only lasted six months. Some correspondence ensued and a great dealof pressure and in June that agreed to an extra £120 per month as from the July2011 payment. Despite her income beingstatic. She can cope with this, just.

Barclays have made a few administrative errors, including paying all of the threepayments into one account, instead of dividing them – they declared her to bein breach of her agreement for this, but subsequently confirmed in writing thatas at the end of April 2011 all of her accounts were in order.

So far so good. Payments have beenmade as agreed every single month, and the arrears have fallen from £7155 inAugust 2010 to £7055 as at the date of the court order in September 2010 to £6230.47as at Mid May 2011 (confirmed by letter from Woolwich). As at the end of July they were down to £5900.47,with August’s payment about to be made this will mean that the arrears will be downto £5770.47 by the end of August 2011.

This has been very hard work for her, but she has stuck with it.

The present position

On the 20th July 2011 she received a letter from the solicitorssaying: “we write to advise you that wehave today written to the court requesting that the proceedings against you arerestored for hearing as further arrears have accrued on your mortgage account. You will receive notification of the hearingdate directly from the court”.

She is absolutely in pieces over this. In tears, unable to work etc etc.

She spoke to the bank on receipt of the letter, and repeated her offer ofnormal payments plus £120 per month from the arrears, but they told her theywould not accept that or any arrangement or offer, but would not give anyreason why.

In the end I telephoned the solicitors myself and asked them to explain their request. They said they didn’t know much about it buthad received instructions from Barclays to restore proceedings as “furtherarrears have accrued”. I asked them toprovide further details and they said they would try but could not promiseanything, but that they are going for immediate possession of the property.

She has heard from the court, and the hearing is listed for the 1stSeptember 2011. She has heard from the courtbut so far has not received any other paperwork from the Barclays, theSolicitors or from the Court.

I helped her to compose letters to the solicitors and to Barclays asking foran explanation of the further arrears mentioned by the solicitors and repeatingthat she was willing to make the normal payments plus a sum of £120 permonth. These letters were posted onFriday 5th August and sent by registered mail.

She cannot afford a solicitor to represent her. I am obviously happy to help her in any way Ican, and will accompany her to court.

She is certainly not feckless, has always maintained interest payments onthe loan and as soon as she could, resumed normal payments and has thenmaintained the payment plan. However, sheis very very depressed, and is feeling what is the point in carrying on asBarclays clearly want to get her evicted from her home.

Desperately seeking help and advice.

Realistically, what are her chances of being able to retain her home?

What can and should she do now?

Any idea why have TLT and Barclays have decided to pursue this course ofaction?

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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.

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Lea. Thank you so much. To be honest I was at my wits end as to what to suggest and your response has been extremely helpful.

 

As you suggested, I have been through all of the various payments made since she ran into problems, in detail, to look for errors or points of weakness. I am now cross eyed and have a headache, but am getting there.

 

The original loan was taken out in August 2003, and her payment record was perfect until February 2009. From that point (March 2009) she made payments of interest every month, with some sporadic additional payments as and when she had any money at all. Arrears accrued until June 2010, when she was able to recommence normal payments, and then normal payments plus £100 from August 2010.

 

These have been maintained apart from payments sent by cheque on the 17th December, which were not put through her bank until 7th January 2011. She phoned the bank and got a nice letter saying that they would backdate the payments to the 20th December, as they were delayed due to the snow and ice problems and short staffing. She has copies of all correspondence.

 

A more serious problem occured with the April 2011 payment, when Barclays received separate cheques, with a letter specifiying which accounts they should be credited to. Due to an admin cockup they put them all into one account, which meant that she had overpayed on one of her three accounts and paid nothing at all on the other two. They immediately cried "foul - broken agreement" - a telephone call elicted a letter confirming that it had been put right and that her accounts were fully up to date as at the end of April 2011.

 

Finally, there was a blip in June when she made just the usual payment, due to having a severe migrane. She recognised the error a few days later and corrected it with a transfer of £100. At that point she had already made additional payments totalling just under £200 spread over the accounts, so the payments on all three accounts were a bit ahead of schedule anyway, but this was a blip. I hope not a serious one.

 

The thing that is very puzzling is that TLT are very specific in their letter that "proceedings are restored as further arrears have accrued on her mortgage account". This is patently untrue, and is easily shown not to be true. The schedule shows that the arrears have fallen every month by at least £100 from August 2010 to today.

______________________

 

What paperwork can we expect from Barclays or the Solicitors between now and the hearing?

 

She has offered a payment of normal payments plus £120 each month, verbally on the 22 July, and then in writing on the 5th August. She was told on the 22 July that they would not accept any offer but would not offer any reason or explanation - just that they require possession and will go to court. Do they have to provide reasons in writing? How might the court view a failure on their part to provide reasons in writing?

 

Will they need to provide any further details of the reasons from restoring the proceedings before the hearing, or will their request suffice for the court with no further detail being needed?

 

I am sorry to bring up so many questions - but I am seriously worried for her health and would love to be able to provide some small reassurance.

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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.

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Hi, if you need help with writing a statement for court or setting up a spreadsheet to show payment history, please say so and we can help.

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

 

 

This site is run solely on donations

 

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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Thank you very much Lea - that is very helpful. And that you Ell-enn - we will take you up on that. You both absolute stars.

 

On the first hearing in September last year, we did what was in effect a statement for the court as it was easier to write one than to try to speak. I was, aganst the wishes of the solicitors agent, allowed to be present as long as I kept my mouth shut. That was hard! But having seen the elegant statements provided on this forum I cringe at our previous efforts.

 

From reading through various other cases on here, it seems that a suspended possession order is something to be avoided at all costs as it provides the mortgagee with significant and permanent powers. Barclays and TLT are clearly very intent on obtaining either possession or at the very least a SPO.

 

So is there a strategy for avoiding the court granting a SPO?

 

And if they do is there any way of appealing it? My lay (and unavoidably biased) view is that she has run into problems but has been very responsible in the way in which she has dealt with it so far, with very regular communication with Barclays - rarely reciprocated.

 

I think one lesson that she did learn early on was to avoid phone calls and have everything in writing and that was a godsend.

 

I have only just dicovered this forum. Quite amazing!

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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).

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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).

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Thank you Lea.

 

Have not had any response yet to the two letters, but as they were only received by Barclays and TLT on Monday this is not surprising.

 

And than you for the information about costs and the circumstances in which they can be charged.

 

A question, if you don't mind - trying to tap into your experience on this. (I know it is not possible to be definitive but a steer on this would be useful). She has made an offer - ie CMI plus £120 per month, which was refused by Barclays, but they would not give any reason. She has repeated the offer in writing. Do they have to provide reasons for refusal in writing within ten working days? And if they don't, what view might the court take of this? It seems to be a reasonable part of the protocol.

 

And how close to the date of the hearing can they leave it before producing details of their claim?

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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.

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Again - many thanks Lea - incredibly helpful.

 

At the end of August the arrears will be some £5770.47 (they were £7055 at the date of the judgement in September 2010). On the basis of a £100 per month reduction from September 2010, one would expect the arrears to be £6855.

 

She may be able to make a further £90 payment towards the arrears this month - should she do so or would that look a bit calculating?

 

The Mortgage runs out in 2023 (I think - it could be 2028)

 

Apart from three incidents - one on her part and two on Barclays - and supported by paperwork - all payments have been made precisely on time and as agreed since June 2010.

 

She has read yours and Ell ens comments and is visibly calmer - so thank you also for that!

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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.

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Thanks Lea. The first payment following the judgement was in September 2010, so at the end of August this will be £1200 on the basis of the wording of the judgement. - ie 7055 - 1200 = £5855. So if her arrears at the end of August are £5770.47 she will be some £84.53 ahead of the game.

 

I have been going through the paperwork in detail, and it is a very interesting exercise. I have to say I am quite astounded!

 

In May 2010, Barclays and TLT told her that her agremeent was only for 6 months from August 2010, and that it had run out in February 2011 and as no new agreement had been put in place she was therefore in breach of her agreement with them. She had in fact written to them in February, by recorded delivery, to suggest either a continuation of the arrangement or capitalisation of the arrears.

 

They reluctantly agreed that she had, but said that they would only accept a significantly higher payment going forward (even though he the r income has not increased). They originally said that they wanted the arrears cleared in 12 months or they would apply for an eviction order under the possession order. I got her consent to speak to them and gently reminded them that did not have a possession order. They agreed to normal payments plus £120 per month.

 

Reading the court judgement which adjourned the case generally with liberty to restore provided that she made normal payments plus £100 per month - it did not mention any review data or end date. So would the court order trump the agreement with Barclays? Or can they simply demand higher and higher payements until she gives up?

 

Your thoughts Lea are, as always, invaluable.

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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.

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Lea - many thanks once again. That is very reassuring.

 

I have to say that I am exhausted and I am not the one in the firing line! So god knows how she is feeling.

 

Will finish the spreadsheet analysis next week and start to gather the statements and documents confirming the arrears position.

 

Then I suppose it is a case of waiting for details of their claim - I would be surprised, in the circumstances, if they base their claim on the basis that "further arrears have accrued" because they clearly have not and it is simple to prove. And she has stuck like glue to the agreement. So I wonder what their game is - TLT are not exactly amateurs at this. (mind you at the last hearing the pre action protocol and witness statements were so full of "errors" that they had to apply to the court for permission to amend - so you never know.

 

I hope you have a good weekend!

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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?

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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.

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Thank you Lea. I cannot say how much I appreciate your care and attention on this.

 

The spreadsheet shows a pretty convincing picture - perfect apart from a blip in June when by mistake she paid the normal payment by the end of June but the extra £100 a few days into July. However according to their own statements for the quarter April 2011 to June 2011, she was already ahead in payments by more than £100 at the time. (mind you I think their accounting system is up the creek, but at least it is there in black and white on their statement produced at the beginning of July).

 

By the End of August, she will be £120 ahead of the agreed payments.

 

HOWEVER - we still do not know what she is defending!

 

The only thing she has had in the last month is a letter from the solicitors saying that they are restoring proceedings because arrears have increased and that was dated 20th July 2011. She has had no papers or statement of claim from the solicitor, and when she rang the court they said that they have not received anything either. Is this normal?

 

The only thing I can think of is that as they are restoring possession proceedings, it is different from a new case? As it was adjourned in September last year, perhaps they will simply reply on the witness statement and information that they provided last year and ask the Court to hear the case on that?

 

So as the case is on the 1st September, there are now just nine working days before the hearing. Which is not a lot of time. I believe the defence form needs to be delivered to the court a certain number of days before the hearing and this is going to be difficult - she is very worried that failure to provide a defence form within the stipulated time will go against her in court - but until she knows details oftheir case against her she cannot respond.

 

Sorry to raise so many questions once again!

 

Many thanks

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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.

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Lea - thank you once again. Your help in this has been amazing! Yes, a hearing has been listed for 2pm on the 1st September. And confirmation has been received from the court.

 

She wrote to both Barclays and the solicitors on the 5th, repeating her offer of current monthly instalment plus £120, outlining the arrears figures and showing how they had reduced over time etc.

 

Last night she had a letter from the solicitors saying that they would like to adjourn the case on the basis that she maintains payments as agreed. Huge relief that she will not have to appear in court again! But is there anything she should beware of - what confirmation should she seek that the proceedings have been adjourned or will the letter from the solicitors be enough?

 

So thanks again

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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.

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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.

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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.

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If you need help constructing the statement please let us know.

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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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