Nat West /Shoosmiths reposession proceedings

[Giveitblackmore]

Ok….so the Wolves are well and truly closing in and I’m starting to crack under a number of different pressures and would really really appreciate some sage advice as I am not thinking straight…..please excuse the rambling…

 

I am in arrears on my mortgage and made an arrangement with Shoosmiths in March to pay back a portion of the arrears and the payment due each month - unfortunately a number of different circumstances have arisen that have destroyed my ability to pay and so the last two months have been unpaid - I informed shoosmiths of my circumstances with the intention of getting back on track asap…

 

My partner and I have split and will be selling this and the other property we own. In addition she will be securing employment to cover off the expenses on her and the kids house while I will be able to pay mine.

 

So the future is not completely bleak - there is plenty of equity in the properties and I have told shoosmiths this with an intention to keep up current payments (however tough that is) and to clear the arrears on the sale of the house.

 

they have not been sympathetic - their client has instructed them to issue proceedings and apply for a hearing date. they will only stop the hearing on receipt of full clearance of outstanding arrears.

 

I worry that all this will come crashing down before we have a chance to sell the properties.

 

Now a question that is going through my head - while all this is going on do I continue to make payment on the mortgage? I dont say this lightly but money is so tight that the money could be used for other things - like subsistence and bills!

 

Do I wait for a hearing and explain to a magistrate/judge my situation and hope for a sensible response to what I’m sure is my reasonable proposal?

 

I have been living with debt for a number of years now so know how to deal with DCI’s etc but this is a new and frankly very worrying situation especially with my personal situation.

 

Any advice/thoughts gratefully received

 

GIB

[citizenB]

Not a comfortable situation to be in

 

I will flag your thread for some attention - although it will probably be later in the day that help will arrive.

[Giveitblackmore]

Thank you so much Citizen B - much appreciated!

[AndyOrch]

Hi GIB

 

I assume you have kept a paper trail of your correspondence and offers with Shoos? Roughly how much are the areas at this date (ball park).

It’s worth bearing in mind that mortgage companies are not vindictive. They will do everything they can to bring about an amicable resolution when you enter a mortgage arrears situation.

 

However, if the arrears amount increases or you fail to show you are taking adequate steps to deal with your arrears then your mortgage lender will have no option than to take things further.

 

You mortgage lender is obliged to issue you a default notice before legal action can start – however, it doesn’t necessarily mean that the creditor will take you to court.

 

The default notice will give you at least seven days to comply with whatever action is required by the lender – if you act quickly you can prevent your mortgage default escalating to a CCJ, possession order or even eviction.

 

If you fail to respond to your default notice, the lender will issue a claim form – again this allows you to make representations concerning how you intend to pay off your debt.

 

If the court isn’t satisfied that you have done enough to remedy your mortgage arrears then the next step is a County Court hearing where you will appear before the district judge and the lender’s solicitor.

 

This is your opportunity to explain to the judge how you intend to take in order to pay off your arrears.

 

Regards

 

Andy

[Giveitblackmore]

Thanks very much for your advice - it is very much appreciated - so I’m guessing that the things Shoosmith are suggesting will happen are scare tactics as no default notice has been issued?

 

Arrears are approximately 7k

 

Do you think at this stage I should be continuing to pay the mortgage and the arrangement amount per month?

 

I am very close to the wire financially and Im certainly not trying to avoid paying I was just thinking that if theyre going to go for me then they will anyway but I guess thats naive!

 

I have all correspondence with Shoosmiths including an explanation of my situation and proposal of how to pay the arrears back.

 

Thanks again

 

GIB

[Ell-enn]

You should certainly pay if at all possible, if the lender does issue a claim for possession it will help your defence if you can show the judge that you maintained payments while trying to come to a reasonable arrangement. Have you sent the lender a budget sheet to show your financial position at the moment?

 

The Civil Justice Council's mortgage arrears protocols state that lenders should do everything possible to avoid repossession if the customer asks for their assistance. If you do have to defend a possession claim in court then you can ask for time to sell the property, but you will have to show that you are marketing it with an agency.

 

If they issue a claim for possession the papers you receive from court will advise of the hearing date (usually within 4 - 6 weeks of receipt). You then need to fill in the N11M Defence form that will come with the court papers, which is where you will explain your circumstances (we can help with a statment to go with that). You send/take it to the court 10 - 14 days before the hearing date. If you make regular payments before the hearing it will help your case. You then need to attend the hearing (very important), the judge will consider your case and decide whether to suspend possession or not - it may be suspended with a review in 3 months to see if the property has sold etc. but you will still need to keep making regular payments in case you have to ask for more time.

[Giveitblackmore]

Thank you so much - as always you help in making very stressful situations a little simpler. I will let you know how I get on. I’ll have a think about what to do over the weekend and report back next week.

 

GIB

[Giveitblackmore]

I had not received a default notice and so asked Shoosmiths if the bank planned to issue one. I got this back…

 

 

"I confirm that there is no requirement for the Bank to serve a default

notice.

 

I am instructed by my client to continue with legal action and apply to

the court for a hearing.”

 

Is this right?

 

Thanks v much

 

GIB

Edited August 13, 2012 by Giveitblackmore

[AndyOrch]

It would depend if the loan was covered by the CCA1974 its age and amount borrowed, even if a DN is not issued they are obliged to inform you in some way that you have defaulted and allow you time to comply with whatever action is required by the lender.

 

Andy

[Giveitblackmore]

Thanks Andy - so should I go back and tell this gentleman so?

[AndyOrch]

I wouldnt advocate getting into a ping pong with them retain this information to present at a suitable time.

[Giveitblackmore]

That makes perfect sense Andy so on the basis that I cant to pay all of the amount due monthly should I pay something as kindly advised by Ell-en?

[AndyOrch]

That makes perfect sense Andy so on the basis that I cant to pay all of the amount due monthly should I pay something as kindly advised by Ell-en?

 

Absolutely always show willing.

[Giveitblackmore]

Thank you - v much Andy - so keep paying something and wait for the legal letter to drop through the door.

[AndyOrch]

Yes will always be a plus and go in your favour with any DJ

[Giveitblackmore]

great Ta!

[Giveitblackmore]

So despite my pleas and explanations of my situation Natwest/Shoosmiths have pressed on and I am now facing a reposession hearing in less than a month - My porposal is that the sale of this and my other property will clear the arrears quite easily. My mitigating circumstances have been less money coming in and double the expenses following my separation - I want to put all this down on the defence form - do you have any further advice?

 

FYI I am quite happy to talk in front of a judge I present for a living and this part doesnt scare me at all I just want to make sure that I’m prepared properly.

 

Should I take (free) advice elsewhere too?

 

Thanks again

 

GIB

[AndyOrch]

This is unfortunate GIBM and one we would have like to avoid.

 

Information http://www.direct.gov.uk/en/HomeAndCommunity/BuyingAndSellingYourHome/Mortgagesandrepossessions/DG_180043

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?98989-Repossession-Hearing-Tomorrow

 

Regards

 

Andy

[Ell-enn]

there is case law you can use to ask the judge to allow smaller payments until the property is sold - I'll look it out for you..........

[AndyOrch]

Many thanks Ell-enn.

 

Andy

[Ell-enn]

It must be on my PC at home (I'm at work at the moment) will post it up as soon as I get home. I've used it in a defence before so I know I've got it

[Ell-enn]

You can use S.36 of the Administration of Justice Act 1970 which enables the court to impose any terms about payment so long as the borrower would, within a reasonable period, be able to clear the arrears.

 

Also if there is a good prospect of the house being sold in a reasonable time there is the case of Royal Bank of Scotland v Elmes where a district judge suspended a warrant for possession for three months on terms that the defendant pay reduced payments of £250 one month and thereafter £500 per month for two months, thereafter the case would further considered.

[Giveitblackmore]

Thank you so much Ell-enn - I take it these are things I would have to talk about to the judge at court and not before?

 

I am currently filling out the defence forms on line and the plaintiffs are saying that the agreement for the loan is not a regulated consumer agreement - do you know if this is standard stuff?

 

Also I want to set out exactly my position to the court before I attend showing how expenses have wuite reasonably shot up and comapre to different I&E’s showing the issues - is this something In your opinion I should put down on the form or wait for court?

 

Thank you again - you’ve been really helpful

 

GIB

[Giveitblackmore]

I have other q’s now that I’m filling out the form - I have made it clear on the form just how ridiculous it is that Shoosmiths are bringing this action especially when my other mortgage provider on the other property has been so accomodating- the figures all add up and my proposal is sensible and achievable - do you think I should run tis text past Shoosmiths and give them the option to cancel their court action?

 

 

Ta

 

GIB

[Giveitblackmore]

Also……there is a part about loans/credit cards owing - as a loyal CAG person I have disputed all of my credit cards as of 3 years ago and havre no intention of paying these back as it stands - do I detail all of these in the court docs or not?

 

ta

 

GIB