possession hearing

[arrears123]

Hi all

I am in court on the 13th June. I have last week come to an agreement with my mortgage lender to pay back the arrears each month. I am in arrears of 6 months now since losing my job last year. The mortgage lender has said a suspended possession order will be issued BUT what i want to know is will the judge agree to this and could i still lose my home????

 

The thing is also is that i have a young daughter and i bought the house with her dad back in 2007, we split when my daughter was 8 months which was in 2009. Since then her dad has not made any payment to the monthly mortgage payments and hasn't responded to any letters or calls from the lender or their solicitor. He has said that he has filled the forms in from the courts and he is going to the hearing if he has to but will this affect me and will his actions look bad on me??? Also will the judge order him to pay towards to arrears???

 

Sorry if this sounds a little confusing, any help would be a great help.

Edited May 31, 2012 by arrears123

[Lea_HTH]

The mortgagee is actually hoping an SPO will be granted, but that doesn't mean the judge will grant one. The best outcome for you would of course be an adjournment on terms - which means that you agree to pay the CMI plus an amount towards the arrears - if you fail to keep to the agreement, the mortgagee has to bring you back into court (and at that stage will probably get an SPO - and in some cases a PO).

 

If an SPO is granted this time around, the very first time you miss a payment, the mortgagee will almost certainly apply for a warrant of execution, and the next you'll know about it is when you receive a Notice of Eviction from the bailiffs. An SPO is a serious situation to be in - so you have to ensure that you are in a position to make the payments you agree to make. As I said, you're better off asking the judge to adjourn on terms.

 

Your ex is free to attend the court hearing, he is, after all, party to it since you are both jointly and severally liable for the loan. The mortgagee really doesn't care which of you pays the mortgage, so long as one of you does. If the property is repossessed then ultimately they will chase both of you for any shortfall (they won't remove him from the mortgage even though it's you paying for it, unless your income reflects affordability).

 

His actions are his actions - it's you that isn't paying the mortgage for the house you are in (even though he is also liable), so I am not sure why you think him attending would look bad for you. The judge can only order you both to make payments - but he can't force your ex (or indeed you) to make payments - but the bottom line is one or other of you has to make payments or you'll lose the property. Are you receiving payments for your child from your ex? If not, make a claim.

[arrears123]

Hi thanks for your reply.

 

I am getting help towards the CMI from the DWP until i can find work and i have offered payment towards the arrears which has now been accepted. The payments were due to start on the 1st of June and has already been paid. I understand that if i miss payment then i will get evicted. Are you saying that the judge can say he doesn't agree with the arrangement set by myself and the mortgage lender then issue a PO?

 

I'm worried that because im currently receiving benefits the judge could say i cant afford the payment but i have looked at my income and i definitely can afford them.

 

My ex does pay for his daughter through CSA. Also i didnt say it would look bad on me if my ex attends. I meant if he doesn't attend court will it look bad on me as its a joint mortgage, would the judge disagree coz my ex doesnt turn up or doesnt offer payment?

 

I dont want my ex making payment as when i am in a better position i am hoping to have his name removed from the mortgage and deeds as its what we both want.

Edited June 2, 2012 by arrears123

[Lea_HTH]

Hi thanks for your reply.

 

I am getting help towards the CMI from the DWP until i can find work and i have offered payment towards the arrears which has now been accepted. The payments were due to start on the 1st of June and has already been paid.

 

Does the DWP payment cover the entire amount of your CMI? Are you making an additional payment towards the arrears?

 

I understand that if i miss payment then i will get evicted.

You can't be evicted unless there is a court order for possession - hence me stating your best outcome would be an adjournment on terms.

 

Are you saying that the judge can say he doesn't agree with the arrangement set by myself and the mortgage lender then issue a PO?

No, read it again.

 

I'm worried that because im currently receiving benefits the judge could say i cant afford the payment but i have looked at my income and i definitely can afford them.

If the DWP payment does not meet your current monthly instalment, and you cannot meet any shortfall if such exists, and also pay a reasonable amount to clear the arrears, then the court can make an order for possession if it sees fit. If the mortgagee has made an agreement with you that is outside of that realm, then they should not be asking the court to endorse it...the fact is, if affordability is an issue, then they'll get possession anyway.

 

My ex does pay for his daughter through CSA.

Good.

 

Also i didnt say it would look bad on me if my ex attends. I meant if he doesn't attend court will it look bad on me as its a joint mortgage, would the judge disagree coz my ex doesnt turn up or doesnt offer payment?

What you meant and what you wrote are two different things. You stated in your original post "He has said that he has filled the forms in from the courts and he is going to the hearing if he has to but will this affect me and will his actions look bad on me??" And that is precisely what I responded to. The judge doesn't care if one or both of you turn up - his/her interest is in judging whether the mortgage is affordable and whether the mortgagee should be granted possession or not.

 

I dont want my ex making payment as when i am in a better position i am hoping to have his name removed from the mortgage and deeds as its what we both want.

You'll need to have cleared the arrears and stayed arrears free for at least a year, and have an income (not benefits) that will sustain the level of mortgage you have before the mortgagee even considers an application to remove your ex's name from the mortgage. This is because if you fail to pay, they still have someone else they can go after for the money.

[arrears123]

The DWP are making 100% payment to the lender and i am paying towards the arrears.

 

The lender originally applied for full possession but then we had agreed on an arrangement. The arrangement wasn't agreed until after the lenders solicitor applied to the court and a date was set because my first offer was refused as it wasn't covering the CMI and i was still waiting for a decision with regards to the DWP. If i asked the judge for an adjournment wouldn't that mean i would have to keep going back to the courts? Wouldn't that be worse? Isn't a SPO only worse if you dont make the payment and can't realistically afford them.

 

I had a letter from the lenders solicitor saying i still had to attend court even tho an arrangement has been reached. It says This agreement is however conditional upon the agreement being subject to a suspended possession order. This means that even though an arrangement has been reached, the possession hearing will still proceed. You should attend the hearing in any event, but also to confirm to the District Judge the arrangement that has been reached. I don't fully understand this as reading it i think they are still going for a possession order then it makes me think they are just notifying the judge of the arrangement very confused sorry, never had anything like this, this is the first time a payment had been missed since losing my job it was always payed on time.

I also know that i can not remove my ex's name until i have a job hence me saying when im in a better position (meaning job, income, no arrears etc). A month before i lost my job my ex tried to force a sale on the property but because the house has negative equity my solicitor advised him against it, my ex also tried to remove his name but as my job wasn't secure enough i knew i had no chance of doing so.

[Lea_HTH]

No, an adjournment would not mean you'd have to keep going back to court - though it does mean that if you miss a payment, the mortgagee will certainly take you back to court. However, if there is no return within 12 months, then the case is struck out. This is why it is the best option.

 

An SPO, on the other hand, will continue to exist whether you stick to the payment agreement or not, and will exist until every last penny of the arrears have been paid - and even then it can continue to exist and be used if you fall into arrears again. If an SPO is granted, once the arrears are cleared and you have remained clear, you would need to apply to the court to have the SPO discharged.

 

If the DWP decide to lower the amount of interest they are paying (as they have done before) and you end up not being able to afford the difference, then an SPO is going to be a lot more serious for you than an adjournment.

 

You should attend court and inform the judge that an agreement for repayment has been reached, and respectfully request that he/she adjourn the matter on terms rather than granting a suspended order. You are not obliged to agree to an SPO with the mortgagee just because they tell you that they are accepting your offer under that condition - it is the judge's decision as to whether he/she will award an SPO - or a PO - based on his/her assessment of the situation.

 

Claiming possession of a property is straightforward - they make a claim to the courts - but the court decides what order, if any, is going to be made, not the claimant. There's nothing to be confused about - no one makes an application to the courts for a suspended order - it is always for outright possession.

[arrears123]

Thanks for the reply made it more clearer, I will just have to see what the judge decides, at the end of the day its up to him/her what happens to the property, nothing more i can do.

[lookinforinfo]

Arrears-you must attend the Court it is in your own interest as there is much you can do when you are there.

The Judge will take it as a sign that you are keen to keep your house and may be more biased towards

granting an adjournment rather than an SPO. He will be encouraged by the fact that you and the mortgage company have come to an agreement.

The hearing itself is very informal-the Judge will be wearing a suit and will keep the whole scene as relaxed as possible. You will probably have to complete an

income and expenditure form beforehand. Once in the room, be as upbeat as you can be and point out that once reemployed, your salary will more than cover your

mortgage. Stress how keen you are to stay there with your daughter and how hard you have worked with the lender to arrive at the agreement that is in place now.

 

The more convinced that the Judge is of your determination to resolve the situation, the more kindly he will look upon you and be more disposed to grant the adjournment

If you disagree with anything the mortgage lender's lawyer says do not interrupt at the time but do challenge it when it is your time to speak. Go for the sympathy vote too

by saying how much the redundancy and mortgage problems affected you at first but you have now recovered. And while an SPO would put your mind at rest since the threat

of losing your house would be so much more reduced, an adjournment would be an even greater relief.

All you want is to go home with the house settled. This will give you so much more confidence during interviews so that this will be the first and last time you will ever attend Court

over repossession.

Good Luck.