Possession Claim hearing - tomorrow

[NYGIRL]

Hello,

 

Newbie here. I have a possession hearing tomorrow on a secured loan, I thought I was clear and understood everything until I have just read it's an unregulated credit agreement. How does this affect things?

 

I fell into 3 months arrears and wrote to ask for a change in direct debit (pay date changed) and explained my husband was made redundant so our income had halved. They wrote back to say the DD would be changed. Nothing happened the DD went through on the olda date and bounced.

 

I have written 3 times to ask for a change in date and to complain at the way I feel this has been handled but have never received a proper reply addressing my concerns. I now have a court hearing tomorrow.

 

I have all my papers, filled in the defence etc but am not sure reading through things what is likely to happen.

 

Any help or advice would be greatly appreciated so I can feel that I am going to court prepared.

Thanks!

[Conniff]

Welcome NY Girl.

 

First off, make sure you attend. It's not a court like you see on telly, it's an office with a table you sit around. If you have all the paperwork showing that you have tried to get this sorted, the judge won't have much sympathy with them. Take an expenditure and expenses form with you so he / she can see exactly what you have coming in and going out and this will go in your favour.

I take it by saying a possession hearing, this loan has been secured on your house??

[Lea_HTH]

How much do you owe?

 

I appreciate you state that you fell into arrears of 3 months, but then requested a change of date for the DD - did you continue to accrue arrears thereafter?

[NYGIRL]

Yes the loan is secured on my house and I will definitely be attending in court. I have been once previously when I took Abbey to court over penalty charges.

I have now accrued 12 months of arrears, and I owe £42,000.The direct debit date was never changed despite me stressing to them and to their solictor's it needed to be changed. They state in their defence that they have no idea of my current state of affairs and I have made no attempt to contact them. I have 4 recorded letters that I have sent them asking to change the DD date and also asking if the arrears could be added to the loan.

 

I have never ever received a response from them to any of my letters apart from saying they would change the DD date and then didn't change it.

 

Just not sure what to expect as it looks like I've made no attempt to pay them I would guess in the Judge's eyes despite me telling them about my current financial issues.

I have filled in the defence form and expenditure form just stating the facts and I have the evidence here to back it up.

 

I have listed some questions to ask the claimants representative, is that ok?

[Rocco17]

I assume that total must include a lot of charges?

 

If your main argument is that they did not change the Direct Debit then I am not sure whether that alone will work. There must be other ways of paying them. Did they not contact you at all about the arrears?

 

More importantly, are you now able to pay the money back and clear the arrears?

[NYGIRL]

Yes it includes charges and I have agreed on the court form to pay £50 a month towards the arrears. My argument is asking them to change the direct debit and them not doing it but also informing them that we were struggling with the payments and arrears and just no response apart from standard letters from them stating you must clear the arrears or we will take you to court and me saying I'm not in a position to clear the arrears in total so can you add to the exisitng loan and no response. My husband is still out of work so things are horrendousl financially at present but I am aware that I need to make a contribution towards the arrears.

 

Is the Judge likely to suspend the order or does it really depend on the day?

[Lea_HTH]

Yes the loan is secured on my house and I will definitely be attending in court. I have been once previously when I took Abbey to court over penalty charges.

I have now accrued 12 months of arrears, and I owe £42,000.

 

You owe 42k in total? How much are the arrears? How many years/months left on the term of the loan? Is it repayment/interest only? Is there another mortgage on the property and is that in arrears?

 

 

The direct debit date was never changed despite me stressing to them and to their solictor's it needed to be changed.

Why didn't you pay the CMI on the date you wanted to pay it?

 

They state in their defence that they have no idea of my current state of affairs and I have made no attempt to contact them. I have 4 recorded letters that I have sent them asking to change the DD date and also asking if the arrears could be added to the loan.

Evidence of you attempting to contact them is good - but again, the issue of changing the date is clearly not what caused the arrears or what made them go from 3 months to 12. They ought to have responded to your letters and it is not good for them that they did not as they are supposed to follow the pre-action protocol. But 12 months of arrears is still 12 months of arrears.

 

I have never ever received a response from them to any of my letters apart from saying they would change the DD date and then didn't change it.

 

Again, why didn't you make payment on the date you asked it to be changed to?

 

Just not sure what to expect as it looks like I've made no attempt to pay them I would guess in the Judge's eyes despite me telling them about my current financial issues.

Why would changing the DD date have made a difference when you clearly didn't make any payment for 9 months after you asked them to change the date?

 

 

I have filled in the defence form and expenditure form just stating the facts and I have the evidence here to back it up.

 

I have listed some questions to ask the claimants representative, is that ok?

What evidence do you think you have?

 

What questions do you want to ask the representative?

[Rocco17]

If you have a detailed Income and Expenditure form and can clearly show what you can afford to pay back then there is a good chance that the judge will suspend but that does depend on what the actual arrears are rather than arrears plus charges.

 

The payment against the arrears has to clear them within the lifetime of the loan at the very least.

 

The fact that they did not change the date when they said they would puts them at fault but in theory they could still expect you to have the money if they weren't taking it couldn't they?

[NYGIRL]

I appreciate your comments and help.

 

The arrears are £3,587.87 with 17 years left to pay. Yes I have my main mortgage with Santander which has never had any arrears in 12 years and neither did this one until now when my circumstances changed.

 

My only evidence is my letters to the claimant and their solicitors and their standard replies back. Despite me asking if my repayment plan had been accepted. Also the fact they terminated the contract without sending me a default notice in the first instance. I want to ask why it was left for solicitors to respond to me and why the claimant didn;t in the first instance, why despite them saying the DD had changed hadn't it. Why I had to chase them for correct pre-action protocol.

 

I just wish I had sought advice earlier and maybe wouldn't be in this mess now.

[Rocco17]

Oh okay, so is £42,000 the full balance of the loan?

 

£50 a month against arrears of £3587 should be acceptable as long as you can prove that is what you can afford and its all you can afford. That clears the arrears in about 6 years.

[NYGIRL]

Yes the full balance is £42,005.04. I have completed the online expenditure form in the court papers and have a printed copy with me as evidence. I assume that if my circumstances change again I can alter the amount to pay off the arrears faster.

[Conniff]

Are there any children involved? Are you claiming all the benefits you might be entitled to?

[Lea_HTH]

I appreciate your comments and help.

 

The arrears are £3,587.87 with 17 years left to pay. Yes I have my main mortgage with Santander which has never had any arrears in 12 years and neither did this one until now when my circumstances changed.

 

My only evidence is my letters to the claimant and their solicitors and their standard replies back. Despite me asking if my repayment plan had been accepted. Also the fact they terminated the contract without sending me a default notice in the first instance. I want to ask why it was left for solicitors to respond to me and why the claimant didn;t in the first instance, why despite them saying the DD had changed hadn't it. Why I had to chase them for correct pre-action protocol.

 

I just wish I had sought advice earlier and maybe wouldn't be in this mess now.

 

So the CMI is around 298 a month? And you can afford that PLUS the 50 quid you are offering towards the arrears? If yes, then there is a strong likelihood of the court either awarding a possession order suspended on those terms, or (which you should ask for in any case) an adjournment on those terms. Make sure you request the adjournment if the judge seems to be going for an SPO - and state that they have not followed the pre-action protocol by ignoring your attempts to resolve the matter (don't forget to accept responsibility for not making the payments).

 

The representative probably won't be able to answer your questions - they are almost certainly going to be an agent and won't have any knowledge of your case other than the bare facts they require in court. You can issue a complaint directly to the company and ask them to address your points.

 

It is likely they will present a pre-action protocol check list to the judge which will indicate all their attempts to contact you, so you're going to have to be certain they didn't contact you if you want to forward the argument that they did not follow the pre-action protocol at all.

 

Your biggest problem is going to be persuading the judge that things would have been different if the DD date had been moved. On the basis of the payments not being made for a further 9 months after the request suggests there wasn't sufficient money to pay even if the DD had changed. What you should probably concentrate on is the fact that you are now in a position to afford the CMI and repay the arrears in a reasonable time frame ongoing (I&E should show proof of that).

 

Incidentally, I presume your property has some equity in it? And that the loan is repayment and not interest only?

[NYGIRL]

Thanks for your responses. The CMI is £316 per month. We are not entitled to any benefits and there are no children involved. Yes my property has equity in it and the loan is repayment only. Also can I ask is it normal that they have written to my current mortgage provider Santander to say they are taking me to court?

 

Thanks for your advice, can you please explain a little more what a suspended order means for me and why I need to ask for an adjournment. Sorry only been to court once in my life

and I was the claimant that time.

[Rocco17]

Thanks for your advice, can you please explain a little more what a suspended order means for me and why I need to ask for an adjournment.

 

Suspended Possession order means that he has agreed with their case but has suspended the possession on the basis that you keep to conditions, namely the proposal you have made, so they can't apply again if you are keeping to the arrangement.

 

Adjournment means that the judge has not been able to make a judgement on the case, so is essentially saying that they have a valid point but so do you (regarding their failure to follow procedure). So the case could be adjourned on the condition that you keep to the proposed arrangement.

 

The advantage of the former over the latter is that with a Suspended Possession Order they can simply re-apply for an eviction if you ever fall behind again, whereas with an adjournment there has been no order against you and they would have to go through court action again if you fall behind.

[NYGIRL]

Thank you for the explanation and your help, much appreciated.

Edited February 12, 2012 by NYGIRL

[Lea_HTH]

An adjournment on terms means the case has been essentially 'put to one side' whilst you have the opportunity to show you can stick to the terms of that adjournment (i.e. to pay the CMI plus an amount towards the arrears). An adjournment comes with 'liberty to restore' usually for 12 months - which means that if you should fail to stick to the terms agreed, the claimant can proceed straight back to court without issuing you with any further papers.

 

A suspended possession order is serious - it means that the claimant has gained possession of your property, but that it has been suspended on condition that you agree to the terms of the SPO - which would be that you pay CMI plus X towards the arrears. If you fail to pay, even once, or you are late in making payment, the claimant can go straight to requesting the court to issue a warrant of execution on the possession order - and the first you will know about it is when the Notice of Eviction comes through your door.

 

I have suggested you request an adjournment because they will have to bring you back to court if you fail to make the payments - with an SPO they do not.

 

The fact that your home has equity in it is a plus factor - it means that you can tell the judge that there is no prejudice to the claimants if an adjournment is given as there is sufficient equity in the property to repay their loan, and the original loan, with a sum left over.

 

With regards to the claimant writing to Santander, that is normal practice and part of the pre-action protocol - in addition they will also have written to your local authority.

[NYGIRL]

Thanks

 

Will the judge naturally go for adjournment or will I have to push the issue with the reasons you have outlined?

[Lea_HTH]

You'll probably need to push - your 12 months of arrears do not go in your favour - but if they haven't done sufficient to assist you, e.g. considering your proposals and not responding at all, then that won't go in their favour either.

 

Just explain to the judge that you are sorry you failed to make the payments, but that it has been difficult since *whatever reason caused the difficulties,* but that you have now managed to sort your finances out and are able to afford the CMI plus X towards the arrears. Point out that the property has equity in it (say how much) and that the claimant's security is not at risk if an adjournment is granted on terms.

 

You will need to acknowledge your own failings - there is no point in going to court and blaming the other side for not changing the date on the DD.

 

Whether an SPO or adjournment is granted will depend entirely on the facts and evidence put before the judge. There remains a possibility of an outright possession order, but this is unlikely if you are able to afford the CMI plus an amount towards the arrears (as you state you can).

 

Get to court early and ask if there are any duty advisers available - most courts that have possession hearings have duty advisers, but they are often in high demand, so get there early if you can. If there aren't any, just remember to remain calm, don't shout or speak out of turn (wait until the judge turns to you) and remember to address the judge as sir or madam (depending on gender of course).

 

Good luck - let us know how you get on.

Edited February 12, 2012 by Lea_HTH
mixed up facts with another case

[NYGIRL]

Thank you so much. I really appreciate your help and knowledge.

[NYGIRL]

Been to court this morning. No duty advisor on so I spoke to the claimants representative. She was ok and rang the claimnats solicitors prior to us going in to see if they would accept

the offer of repyamnt plus the amount towards the arrears. They refused so in we went to see the Judge. He was ok, a bit confused why the claimant had not changed the date as requested. He just suspended the order he wasn't going to be pushed by me at all. He was in charge!

 

The claimants representative has told me I now have to contact them or the solicitor to say when the next payment will be made and advise them the Judge has asked for the contractual date to be changed to the 1st of each month as requested by me.

 

I was pretty nervous and didn't sleep at all last night but the representative was nice although quite a couple of her facts were wrong like the amount of arrears and me never making contact. I had my say so felt ok with the hearing and the Judge just said "Don't let me down and make the payments as you have outlined otherwise I can't stop them taking your house next time.

 

Massive thanks to you all for your help and advice, I know I wouldn't have got through it without the tips you gave me and the knowledge to understand what was going on.

[Conniff]

Congratulations NYG, now have a good nights sleep, after the champers.

[Lea_HTH]

Been to court this morning. No duty advisor on so I spoke to the claimants representative. She was ok and rang the claimnats solicitors prior to us going in to see if they would accept

the offer of repyamnt plus the amount towards the arrears. They refused so in we went to see the Judge. He was ok, a bit confused why the claimant had not changed the date as requested. He just suspended the order he wasn't going to be pushed by me at all. He was in charge!

 

The claimants representative has told me I now have to contact them or the solicitor to say when the next payment will be made and advise them the Judge has asked for the contractual date to be changed to the 1st of each month as requested by me.

 

I was pretty nervous and didn't sleep at all last night but the representative was nice although quite a couple of her facts were wrong like the amount of arrears and me never making contact. I had my say so felt ok with the hearing and the Judge just said "Don't let me down and make the payments as you have outlined otherwise I can't stop them taking your house next time.

 

Massive thanks to you all for your help and advice, I know I wouldn't have got through it without the tips you gave me and the knowledge to understand what was going on.

 

Well done - an SPO at least gives you a chance to make the payments as planned - and if you make them nothing further will happen.

 

If something does go awry and you can't make a payment, make sure you contact the mortgagee as quickly as possible (in writing and keep a copy). Whilst the judge said he wouldn't be able to stop them next time, that is not entirely true, so if you get an eviction order make sure you post back here for some more help.

 

In the meantime, relax and start to enjoy your home again!

[NYGIRL]

Thanks, one more question, should I call the lender or put in in writing or both as to what was agreed?

[Lea_HTH]

There's no need - it's a court order, the court will send out a copy of the order which will bullet point what was ordered. E.g. Possession suspended on terms of...X...payment date to be changed to... and so on. You should have it in about a week, if it doesn't detail the change of date, then by all means write to them at that stage.