Overdraft on a mortgage - help needed urgently!!!!!!!!

[atom02]

Dear all,

 

I need some urgent help with a repo that includes an overdraft (apparently secured on my home without my knowledge - well, until now!!!!!!!!)

 

Please can someone assist me with defending this claim or at least the OD part of it? I know they are covered by CCA but exempt from a part of it but has anyone had any successes with defending OD claims?

 

I need this help urgently - please, please, please...I have suffered a great deal from default judgments I was too late to overturn. i do not want to have the same happen here over an OD

 

atom

Edited August 20, 2011 by atom02

[rebel11]

Hi atom

 

You need to provide more details Also scan, post the POC removing all personal details. Have you got all the documents you need?

 

Don't send this off just yet, have a read. http://www.consumerwiki.co.uk/index.php/DCA:_Using_CPR_31.14_to_Your_Advantage

 

You need to have grounds to defend.

[atom02]

Hi rebel11,

 

Thanks for your quick reply.

 

I have copied the main parts of the POC (attached).

 

Please what do you need to know? Here is some background:

 

(1) I took the account out in 2004 and they added a current/OD account & cheque book to it, which I was told I had to have with the specific product.

(2) In difficult times since, I have drawn some money on it but frankly don't know what the interest rate is.

(3) A few months ago, the acct was terminated by sharkleys under s89 (I think - need to find the letter). Before then, I tried to make an arrangement for both mortgage & OD and was told they would only help if I (God forbid!) suffered from a terminal illness

(4) I served an s77 - 79 request and got one 'made up' agreement for my old CC

(5) Since then, I have heard nothing, was away most of the time looking after a parent who had had surgery...

(6) Possession claim arrived.

 

Does this provide enough info - of course I have to be careful as this is an open forum but happy to throw more light on any of it if it helps anyone to help me.

 

atom

POC - Mortgage.pdf

[atom02]

Hi rebell,

 

I think I can perhaps challenge the OD as it appears to have been bolted onto the mortgage contract without its own separate agreement that states what the interest rate and other information are. I actually also didn't ask for it.

 

It seems as my mortgage balance has decreased, the OD limit has increased (in some proportion that isn't clear) as a result of which they continue to have room to apply interest with which they have maxed out the initial limit even after I asked to make an arrangement to pay token amounts back. This leaves me in a situation whereby I could (in theory) probably never manage to pay off my mortgage & OD.

 

Also, if I settle the mortgage, the OD gets precedence as they use the money to pay it off first before the mortgage.

 

I don't think this is right but I need some help to challenge it if the more knowledgeable ones here believe there is mileage in this.

 

atom

[Gaston Grimsdyke]

This is a so-called "flexible mortgage" where in addition to the loan for the purchase of the property, you get an overdraft draw down facility which is also secured against the property and usually attracts the same rate of interest as the main mortgage. That makes it a cheap way to borrow money, and the overdraft limit will generally increase as the mortgage reduces since the bank looks at your overall lending, i.e. if your mortgage reduces by 10K your overdraft limit is increased by 10K so the overall borrowing is the same. The trouble with overdrafts is that they are repayable on demand and you have no right to pay them back by instalments as you do with the mortgage. Whether or not you asked for the facility, you have obviously taken it so that constitutes your consent. The bottom line is that if your home is being threatened because they have called the overdraft in you could really do with some professional advice - I would start with the CAB if you can't afford a solicitor.

[atom02]

Hi Gaston,

 

Thanks for your input. I accept what you've said about consent and am working towards trying to sort things out but this is crisis. Surely, even if there is consent, shouldn't I have had some sort of terms clearly spelt out by the bank at the start or later? Sadly though, the rate of interest is higher than the mortgage rate and even the bank isn't able to confirm what this is. It makes me wonder...

 

atom

[caro]

Seems to me the main issue here must be to stop the repossession so I'm going to move this thread to the repo forum.

[atom02]

thanks - how can one stop a repo? Queues for CAB access are blocks long and I don't have more than 2 weeks. Can someone give me some general direction please?

[caro]

At the top of the repos forum there are lots of successes threads so take a read of some of them for ideas.

 

If you're in a position to pay some off the arrears you'll be unlikely to be repossessed.

 

Have repossession proceedings started and if so what's happened so far?

[atom02]

I have received a claim form for a hearing on 6th sept.

The arrears are approx 12k (including charges of over £1000) so I cannot pay it off at once but have tried to make an arrangement with the company. Only this seems like a moving feast: they have added a few £s to the normal monthly payment and though the interest rate changes to a much lower rate b4 the end of august, I tried to make an arrangement on the basis of the new rate since this will take a forward view of affordability but the bank says they are not sure what those payments will be yet. This places me in an impossible position - literally.

Edited August 21, 2011 by atom02

[caro]

Who is the lender and how much longer is left on the mortgage?

 

What exactly is the hearing for?

 

Is there already a possession order?

 

Why is the interest rate coming down?

[atom02]

Who is the lender and how much longer is left on the mortgage? - Woolwich (Barc)

 

What exactly is the hearing for? - repossession because of arrears and as they can nolonger increase the OD, it is over limit

 

Is there already a possession order? - no

 

Why is the interest rate coming down?

- it was on a fixed rate on which they have been making over 5% gain on but it drops now to base rate plus x%

 

 

Please see my answers above. thanks.

Edited August 21, 2011 by atom02
to clarify

[caro]

Is it like a one account mortgage where current account, mortgage and savings are all linked?

[atom02]

no - it isn't.

 

Just a fixed rate mortgage I asked for and to which they bolted an OD acct. I nolonger have any other active accts with them.

 

At the end of the fixed rate, a new rate (as above) is applicable

[atom02]

any pointers to deal with this please?

[caro]

Sorry for all the questions. Just trying to get a clear picture. I've asked Ell-enn to take a look.

[atom02]

Please do not apologise. Sorry if my answers are a bit curt. My reserves are being tested by this experience

[Ell-enn]

Hi there,

I assume you have received a N11M defence form with the claim pack? You will need to write a statement at Question 27 of the defence form, we can help you with that. What exactly has the lender stated in the claim form? i.e. do they mention the overdraft or just the arrears on the mortgage ?

 

In order to advise further can you answer the following questions?

 

1. Are you able to offer additional payment towards the arrears in addition to the normal monthly payment?

2.Is the mortgage in joint names?

3.Do you have any children living at home?

4.How many months payments have you missed ?

5.What was the reason for the missed payments ?

 

You say you tried to make an arrangement with the lender, was this in writing and did you keep a copy?

 

Don't panic about getting the defence from to court 2 weeks before the hearing, courts will accept your defence a few days before.

[atom02]

Hi Ell-enn,

 

Thank you for looking in. To avoid repetition and possibly omissions (am not thinking straight just now), please see the attachment in post #3.

 

Yes - they are demanding the amount they say it is overdrawn by. They have called it a mortgage current account OD and want the current interest amount of £200 per month, which I can't afford.

 

For the other questions, here are some answers:

 

1. Not at the moment but might be able to in about a month or two. Unfortunately, don't have untill then... maybe this hands them the repo? I don't know. But am trying to raise some money to make the monthly payments until I get back to work or sell up.

2. No

3. No

4. Haven't missed any payments, just haven't paid the full monthly amounts

5. job loss and illness (parent) in the family and at the same time, my other half having to have life-saving surgery while abroad. So all savings gone to that while I struggled for months to make part payments to the mortgage.

 

Verbally tried so far (all recorded).

 

I appreciate your help.

 

atom

[Ell-enn]

Are you working at the moment ?

[atom02]

no, unfortunately not but I have an offer likely to be confirmed in september.

[atom02]

I have been making token payments of £35 towards the OD which I can probably continue maintain in the meantime.

[atom02]

clearly no assistance forthcoming then?? incredible

Edited August 24, 2011 by atom02

[atom02]

Please does anyone know if I offer monthly payments less than what the bank wants whether the Judge automatically grants the repo? For example, if the bank says the monthly payments are £500 and I offer £350 (which is what I can demonstrably afford), whether this is ceratin to end in a repo being granted or the court will take circumstances into account?

 

For anyone willing and able to help, your comments are appreciated.

 

Thanks - atom

[rebel11]

Hi Atom

 

The guys will be happy to advise as soon as they are available. Ell-enn has reponded previously, I'll flag it up.