taking old mortgage co. to court - moved to their local court?

[iconoclash]

Hi - cant find anything on this situation so really hoping you guys can help.

 

 

My lender obtained a suspended rep order with directions to clear arrears

- they then capitalised the arrears

- they then sold the mortgage on to another servicing company

 

 

- this latest company is now enforcing the old order as Ive gotten into a small amount of arrears - can they do this?

 

 

The court order is not in their name and I thought it was automatically squashed once the arrears were cleared before

- although the order does not state an amount it is in relation to a set of papers

and evidence produced for a specific case against me in 2009.

 

 

Surely a mortgage administrator cannot buy a court order along with a mortgage book??

 

anyone? thank you:shock:

[iconoclash]

Hi - still dont know the answer to this one

but do think that if my current mortgage servicing company wishes

to behave as if the court order is theirs rather than having been in favour of their predecessor,

 

 

then they must also explain why they took me back into court recently to chase arrears

when they are claiming to already have an Order ??

- thus abusing process

- and then putting those legal costs onto me!!

 

 

- should I take some legal action against this outfit?

 

 

Another aspect to this is that the amount was less than £5000 yet they continue to charge interest

- my understanding is that this has to be claimed at the time of the case ,

 

 

it is not mentioned in the papers at all but the administrators think they can charge interest vicariously

e.g. via my mortgage balance.

 

 

Again - I believe this to be a no no.

 

 

Hope someone more knowledgeable than me can give some pointers.

 

 

thanks again.

Edited May 23, 2011 by iconoclash
extra info

[Gaston Grimsdyke]

Yes they can have the benefit of the court order if they purchase the mortgage debt.

 

 

If they want to take any action on the court order they will first have to apply to be substituted as the Claimant though.

 

 

Also the mortgage debt will continue to accrue costs and interest outside of any judgment even if less than 5K.

 

 

Not clear whether there was a money judgment with the original possession order though.

 

 

Also you indicate they are trying to enforce the old order but also say they are issuing fresh proceedings?

 

 

Can you clarify?

[iconoclash]

Hi - well they havent been substituted as claimants on the old order

but have another order generally adjourned for the same damn thing

 

 

- so this is an abuse of process since they insist that they are relying on the old order

and are merrily applying costs in relation to that

 

 

- i think i should put this in front of a judge since they have charged all their legal costs to me

and these too are apparently attracting interest

 

 

- so - in theory they might as well issue another action and round it up to three!

[iconoclash]

Hi - have had a spurious claim issued against me which I can and do wish to fully defend

- my main problem at the moment is that the its been issued in Aylesbury Court - nowehre near me.

 

 

I have written to the claimant and told them my position and copied it to Aylesbury County Court

stating that I would wish to defend and transfer to my local court.

 

 

To my amazement they have gone ahead with a hearing in my absence without notifying me of any hearing dates!

 

 

I believe that they should have automatically transferred this to my local court, having read the CPR on this.

 

 

But the DJ has made directions for the defendant, me, to submit my full defence to them by Feb 10.

 

 

So, now I dont know how this affects my transfer request if they have already begun a process of sorts?

 

 

there is now way I can afford to go to Aylesbury being unemployed at the moment

and on such a tight budget. any advice would be very welcome.

thanks.

[numbers666]

Hi Cam,

 

Submit defence as directed to aylesbury, it will be transfered to your local cc.

 

N

[iconoclash]

Hi

- I have had legal costs added to my mortgage account by a lender which are over and above those already decided in a court.

 

 

The DJ set the costs the claimant was allowed in a hearing back in 2009

but since then I have noticed various amounts in my statements called legal costs.

 

 

I have tried for over a year to get these back but the lender is now refusing to talk to me

as they have transferred to account to another company.

 

 

I am now at ligitigation stage and think that these costs possible come under Fraud,

ie. keeping something that they shouldnt have and creating a gain for themselves.

 

Can anyone please advise is this the best legislation to use in such a scenario

and if Ive got that wrong what should I use,

as I dont think this is penalty charges type of deal.

 

 

many thanks.

Edited March 11, 2012 by iconoclash
typo

[BRIGADIER2JCS]

Please answer the following questions.

1. Why were you in court over this.?

2. Which company is this in the hands of now?

3. At litigation stage now?

4 Just for the disputed charges?

5.Have you ask the original lender or

the new company to explain these ''charges''.

[Lea_HTH]

Costs generally follow the event. Ergo costs awarded at a court hearing will be costs up to and including THAT hearing. Subsequent legal costs arising out of breaches to contract can continue to be applied - they are a contractual term and the judge has no jurisdiction over that until a claim is laid before him/her.

[iconoclash]

Hi - to add more info:

 

 

there have been no more court hearings,

these costs are the original ones that the judge threw out,

we went through every invoice in the hearing and the figure was set

- they have exceeded it.

 

 

The lender who took the action (and not following mortgage pre-action protocols I might add) is Oakwood Homeloans

they keep giving me the runaround

 

 

- the litigation stage is my claim fo redress which is ready to go into court as there is nothing else I can do now.

 

 

Yes, checked with the new lender - they will not entertain anything that was done by others

- they say they were given the transfer balance and thats that.

 

 

I have given them their pre-lit letter and written so many other letters but they refuse to discuss it.

 

 

Oh and it was a suspended repo order which they got and the next week they capitalised the arrears.

 

 

I was so displeased with it all as they could have capitalised in the first place of course

but in the end had a legal costs bill to me for more than the actual arrears. Ho Hum.

 

 

i have to make sure I am not being taken for even more money.

 

Sounds like civil fraud to me.....

[Lea_HTH]

Legal costs don't necessarily have to pertain to actual hearings

- it's any work they conduct on your case up to, and including, hearings.

 

 

The costs can be applied at any time they are incurred, as part of your terms and conditions of the original mortgage contract.

 

 

As I said, a judge has no jurisdiction over that until it is laid before him/her.

 

The judge in your case could only have assessed costs up to the point it was in front of him

- after that, he has no jurisdiction (until it is before him again - which clearly you are seeking to do).

 

 

Also, you stated 'since then I have noticed various amounts on my statements'

- which imply the costs you were referring to were SINCE the court hearing,

and therefore NOT the ones the judge has already given judgment on.

 

It's not fraud

- you agreed to allowing them to charge you their costs if you breached your contract with them.

It is always open to you to challenge the fairness of such costs - which you appear to be doing.

[iconoclash]

Hi - thanks for your responses.

I must be too vague or something - after the court set the fees they added more than what was set.

 

They are not allowed to do this under any terms.

Fraud Act

Fraud by abuse of position:

 

(1)A person is in breach of this section if he—

(a)occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person,

(b)dishonestly abuses that position, and

©intends, by means of the abuse of that position—

(i)to make a gain for himself or another, or

(ii)to cause loss to another or to expose another to a risk of loss.

(2)A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.

[iconoclash]

Legal costs don't necessarily have to pertain to actual hearings

- it's any work they conduct on your case up to, and including, hearings.

The costs can be applied at any time they are incurred,

as part of your terms and conditions of the original mortgage contract.

 

 

Have checked my contract and it says that third party expenses may be added,

however, they also have to be advised to the customer in advance and be legitimate.

 

 

Third Party expenses would seem to be the only category in which legal fees fall for the purpose of the argument,

and moreover, any third party expenses should be qualified,

which is why I called for copies of the solicitors invoices and found them adding fees not agreed in court,

which were in turn added to my balance, plus interest of course.

[Lea_HTH]

Hi - thanks for your responses.

I must be too vague or something - after the court set the fees they added more than what was set.

 

They are not allowed to do this under any terms.

 

for clarity's sake - are you stating that the court case was the END of the contract between you and the mortgagee?

That there has been no ongoing contract between you and the mortgagee since the court case?

If that was the case, then your position may be correct,

though following repossession costs CAN continue to be added due to any further expenditure they incur.

 

If your mortgage continued AFTER the court hearing,

then the mortgagee is entitled to continue to add the reasonable costs of administering an account in default.

That is not fraud.

[iconoclash]

If your mortgage continued AFTER the court hearing, then the mortgagee is entitled to continue to add the reasonable costs of administering an account in default. That is not fraud.

 

So you are saying that just by having a contract with them for a mortgage therefore allows them to add legal fees, that is legal fees, above and beyond what a court of law has agreed because you thinkthat must be reasonable???

[Lea_HTH]

You didn't answer the question.

[iconoclash]

You mean adding charges for being in arrears that are already being paid off at the rate prescribed by a judge?

 

 

Paying late payment fees for the DWP making late payments despite being signed up to their scheme,

or maybe, paying insurance fees when you have your own insurance,

or perhaps, paying a fee for not paying by direct debit when the payment comes directly from the DWP and is outside of your own control,

or maybe paying extra legal fees when there is no legal action being taken??

 

 

In fact these issues are with the FOS - it is only the legal fees that are not as they have, guess what,

been decided by a court and therefore cannot be handled by the FOS.

[dadofholly]

The crux of this will be the wording of the Court Order.

[Lea_HTH]

Are you suggesting the judge changed the terms and conditions of the original mortgage contract?

[dadofholly]

Lea - who are you asking?

[iconoclash]

HI - yes I agree

- it is not a catch-all standard contracts will apply scenario

- this was set by a DJ and therefore it must be complied with.

 

 

The court order states the amount to pay,

the amount to pay towards arrears,

and the amount of legal costs allowed to the claimant.

 

 

if the judge says you may have £4000 in costs I do not expect to see a charge of £7000 on my account (for example)

especially if I see the claimants solicitors invoices prepared for the hearing

and they coincidentally add up to £7000.

 

 

What else matters.

 

 

And where did I say that this was repossession?

- the mortgage was sold on to yet another mortgage administrator and is current.

[dadofholly]

If that comment wa aimed at me - I am stating a fact that a Judge can make an order that is binding.

 

Was the wording of the T&C's lawful? No I dont know either.

 

Hence it is the wording of the order that is important

[Lea_HTH]

DoH, I was asking you as you suggested that the wording of the court order was at the crux of this matter

- but in fact, unless a judge changed the T&Cs (highly unlikely),

the order made would be binding up to and including the hearing,

and thereafter the original contract terms come back into play.

 

FOS is the right place to issue a complaint - once they've adjudicated, it'll be clear whether they believe the charges to be fair (or not).

[Lea_HTH]

What else would you have been in court with a mortgage for, other than repossession?

[Lea_HTH]

Meh, anyway,

if you are NOW saying (bearing in mind your original post stated that you had noticed further legal costs added AFTER the court hearing),

that the charge made was in fact 7k when a judge ordered 4k,

then yes, the 3k may be unlawful IF it relates to that hearing and work prior to that hearing.

 

 

However, if the additional 3k relates to other work

(and they can prove that and also prove that the costs are reasonable for the type of work carried out -

e.g if they prepared a case to go back to court and charged £550 for that,

 

 

then that would not be seen as an unreasonable charge,

it's about 2.5 hours work),

 

 

then they are entitled under the T&Cs to make that charge.