URGENT!!!! Eviction Notice whilst waiting for Appeal

[messina67]

Hello there,

 

I would be grateful to receive some assistance as I am at my wits end. I made an application to the Court for an appeal to be heard by a Circuit Judge. This application was based on my application to suspend a warrant of eviction being dismissed by the County Court Judge in November. My appeal application is still being processed at Central London County Court. However the mortgage provider has gone and secured a new date for eviction prior to the appeal being heard? Is this normal and can I contest this?

 

I eagerly await a response.

 

Thank you in anticipation.

 

Regards

[Lea_HTH]

Notify the court of the new eviction date and request that it is stayed until your appeal is heard.

 

(That's if your appeal hasn't already been decided - when is it listed for?)

[messina67]

@ Lea_HTH

 

Thanks for your response. Well appreciated. We haven't being given a date for the Appeal yet, neither have we received a decision.

[Lea_HTH]

When did you make the appeal? Why don't you have a date as yet?

[messina67]

@ Lea_ HTH

 

My sincere apologies for the delay in getting back to you. My computer crashed and full function has only just been restored. In answer to your question, When we made the application in November, we waited all day at the court for a decision from the Circuit Judge, who ordered that if we wish to appeal we needed to provide specified documents, which was provided the very next day. We were told it could take 6 to 8 weeks to get an appeal date.

 

We were then told that we would be contacted with a decision. Despite several phone calls, we were told the application was being processed. After receiving the exact order received on the day of the appeal in the post (i.e the order regarding the provision of specified documents) we wrote a letter citing our concerns and queries. We requested that this letter be passed to the Judge. Again, we were told, we will be informed of the progress. However, over two months later....nothing received.

 

We acknowledge that we need to physically go to the court and file an application to stay the eviction, which we are prepared to do. We just wanted to ascertain what point of law will work in our favour in view of the court's delay and the mortgage provider's actions in securing an eviction date during the process of waiting for an appeal.

 

We would be really grateful for any information.

 

P.S. As the court has obviously caused the delay, can they not use their powers to stay the eviction without us having to go through the ordeal of another court room hearing? Just a hopeful thought.....

[Lea_HTH]

If no appeal date has been granted, the mortgagee has done nothing wrong in proceeding to executing the warrant.

 

Until you establish what the delay with the appeal hearing is, there are no points of law to consider. Are you certain the circuit judge has not made a decision on the appeal on the papers and has refused said appeal? You need to go to the court and find out definitively.

 

If there is no appeal pending, then you will need to make a stay application.

[messina67]

@ Lea_HTH

 

Thank you very much for your assistance. It has been greatly appreciated. We'll take your advice and chase this up on Monday.

 

Kind regards

[messina67]

@ Lea_ HTH or anybody else who may be available to offer assistance. PLEASE......

 

I attended the court, only to realise that my appeal was not processed at all. Despite paying for the application and complying with the Judge's initial order to provide evidential documents if we wished to appeal; it appears that the court made a grave error and did not process the further documents. The papers were still waiting to be sent to a Judge. Despite numerous phone calls and a letter, this error was not identified by the court staff.

 

We assumed we were just waiting on the application to be processed, as we were advised this process could take up to 8 weeks. It appears that the lower court permitted the mortgagee to obtain an eviction date and this was issued whilst the appeal processing was in progress and is STILL in progress.

 

I am beside myself with worry as the eviction is scheduled for tomorrow afternoon. I feel that we have been prejudiced by the court process (or to be more exact, the lack of process). Through no fault of our own, we we denied the right to have a decision regarding our appeal.

 

Where do we stand now? Can we request that this eviction date be stayed by the Circuit Judge until our appeal is heard, as we were a victim of the court's error? What are our chances? Should we have to make another application due to their error. Or is it possible for the Circuit Judge to stay the eviction due to the court's error?

 

Many Thanks. I eagerly await a response.

[Lea_HTH]

You should make the application again - no time for phaffing about. Go to the court tomorrow morning, take all the information that you say you provided previously and resubmit it and ask for an immediate hearing. You should get one without further delay and the eviction will be stayed until the judge makes his/her decision on your appeal.

 

You could have chased the court up sooner, and whilst they failed to marry up your resubmitted papers (did you mark them with the case number?), you also failed to see why it was taking so long (appeals to the CJ generally do not take 8 weeks for a hearing date).

 

Your chances are only as good as the appeal you put before the judge and the reasons for that original appeal - which would generally be that the district judge made an error in fact or law.

[messina67]

@ Lea_HTH

 

Thanks for the advice. This new application...is this a new appeall i.e. NI61 form or an N244? The resubmitted documents all had the Claim number clerly written on them. I know it isn't much use now, but we called the courts and we wrote a comprehensive letter querying the progress and the lengyh of time the process was taking.

[messina67]

@ Lea_HTH

 

Thanks for the advice. This new application...is this a new appeal i.e. NI61 form or an N244? The resubmitted documents all had the Claim number clearly written on them. I know it isn't much use now, but we called the courts and we wrote a comprehensive letter querying the progress and the length of time the process was taking. However....no joy!

 

My concern with the new appeal is that , it is now outside of the time limits for appealing. (I believe) We take full responsibility for the current situation, however we genuinely believed we were awaiting the processing of our documents, which is now clearly not the case.

 

Can we submit an N244 application, state the sequence of events and request a stay of eviction?

 

Many thanks...

 

P.S. Rewritten as last question was not completed.

[Lea_HTH]

It's still an appeal - your previous stay application was unsuccessful, hence you going to appeal.

 

One of the difficulties with leaving things to the last moment, is that you may not get the help you require (I was in court this morning, so didn't see your message until now).

 

Hopefully you'll have gone to court and made the appeal.

[messina67]

Lea_HTH.... Thank you for your support. I can't even begin to express how grateful I am for your assistance. I agree re - last minute statement. However, this was not intended and done in desperation. Hope all went well for you in court.

 

We went to court first thing this morning and was informed by the court staff that there was no trace of our submitted support documents. We were also informed that if we wish to make a new appeal, this was outside of the stipulated time limit. We argued that our supporting documents were submitted within the required time and the court had clearly misplaced them.

 

We were a bit dubious about giving copies of our documents as the court staff appeared hell bent to prove that no supporting documents were ever filed. To further compound this, our entire file could not be located, despite the lower court categorically stating that these files were transferred.

 

We felt we were left with no option but to file an N244 application to stay the eviction and to request for the due process of the original appeal. The N244 application is due to be heard tomorrow. (The eviction due for today has been temporarily stayed) We have evidence of fax transmission sent to the courts on numerous occasions. These transmissions included support documents and letters of queries and complaints to the court, therefore, they can hardly deny receipt of some of these documents.

 

We are not to trying to apportion blame unnecessarily and we do accept responsibility for certain areas, however we were very perturbed to learn of the misplaced files at this late stage despite several previous queries. Is there anything in particular we should home in on, which will boost our chances of success?

[Lea_HTH]

Lea_HTH.... Thank you for your support. I can't even begin to express how grateful I am for your assistance. I agree re - last minute statement. However, this was not intended and done in desperation. Hope all went well for you in court.

 

Yes, I can understand you were desperate - it's just that better help can be given when there's a bit of time in which to do it. (My client today had a great outcome to a virtually impossible stay - his saving grace, a potential PPI claim payout of all things! He at least went home to his own bed.)

 

We went to court first thing this morning and was informed by the court staff that there was no trace of our submitted support documents. We were also informed that if we wish to make a new appeal, this was outside of the stipulated time limit. We argued that our supporting documents were submitted within the required time and the court had clearly misplaced them.

 

We were a bit dubious about giving copies of our documents as the court staff appeared hell bent to prove that no supporting documents were ever filed. To further compound this, our entire file could not be located, despite the lower court categorically stating that these files were transferred.

 

We felt we were left with no option but to file an N244 application to stay the eviction and to request for the due process of the original appeal. The N244 application is due to be heard tomorrow. (The eviction due for today has been temporarily stayed) We have evidence of fax transmission sent to the courts on numerous occasions. These transmissions included support documents and letters of queries and complaints to the court, therefore, they can hardly deny receipt of some of these documents.

 

We are not to trying to apportion blame unnecessarily and we do accept responsibility for certain areas, however we were very perturbed to learn of the misplaced files at this late stage despite several previous queries. Is there anything in particular we should home in on, which will boost our chances of success?

 

I'd like to say that I am surprised at your court staff's incompetence - but I can't honestly as it seems to happen quite frequently in the county courts. This is a shame, as the most important thing to own/have in anyone's life is their home, so to lose people's paperwork, or treat it so carelessly that it gets mislaid, is frankly unacceptable.

 

In future, ask for the person's name who you hand the paperwork to, take a typed out list, and ask that person to tick check the list confirming he/she has received each document and then ask them to sign it and stamp it. Many of them won't want to give their full names, but tell them putting their first name and the date will be perfectly acceptable alongside the court stamp. You then have concrete proof that you submitted the documents.

 

I am concerned that your stay application will be refused given that your previous one was and there was an appeal pending. It is not in a district judge's powers to overturn another district judge's decision, where that decision is up for appeal. A circuit judge MUST do that.

 

Have you had any substantial change to your circumstances (and finances) since the last stay app was rejected? On what basis have you applied for the stay?

[messina67]

I concur re-the unacceptable behaviour of court staff. They are a law unto themselves and this should not be allowed.

 

I probably wasn't very clear, but it is a Circuit Judge that we'll be seeing tomorrow. The court manager at my local court (no Circuit Judge available) informed us that we need to make the application at the court where the appeal is pending. The basis of the stay is to allow the pending appeal to be processed, as we were denied this opportunity due to blatant errors made by the court.

 

Our circumstances have also changed for the better since then.

[messina67]

I've just noted something from your previous response.....I need to clarify that we've not made any previous application for stay whilst the appeal was pending. This is the first. I don't know if this makes a difference to the situation.

 

Thanks

[Lea_HTH]

If you are seeing the circuit judge, then that'll be the appeal hearing - make sure you take everything with you in terms of documents.

 

I understood you had not made a further stay - I was referring to the one you made which was refused which led you to make the appeal.

 

If your circumstances have changed, hopefully the CJ will consider that alongside your appeal - although he does not have to, and different county courts apply the rules slightly differently - if he finds in your favour for the appeal, he may refer the stay application back to the lower court for a DJ or DDJ to decide on.

 

I hope it goes well for you.

[messina67]

Lea_HTH! We've not too long returned from court and we got the permission to appeal! I am soooooooo grateful to you and incredibly appreciative of your tremendous support and guidance. Our hearing was at 10.00 hours and your response came in at 9.45, whilst we were just outside the court! I am convinced that was divine intervention! That was no co-incidence!

 

Your message boosted our confidence and gave us hope and knowledge. Knowledge...as we weren't sure of the process and didn't realise that it would have been an appeal hearing. We thought that he would address the N244 application and then, if successful, a date would have been given re- the appeal. I'm sure you'd tell me that; courts operate on saving costs and time....lol. It's amazing that without representation....we cracked it! However, ithis was all down to your excellent advice!

 

In retrospect, we realise that the original order was somewhat ambiguous (for us, that is) as we thought that permission to appeal had been granted on the proviso that the relevant documents were filed. It is now clear that, it was slightly more intricate and our case would have been assessed on the strength of the documents. Either way, we are delighted as we came home to "our own bed". The Judge acknowledged the issue regarding the misplaced documents and ordered that the bundle for the appeal be brought into court on the day and not to be filed. I just love this!!

 

With regards to your case in court. I only just saw that message, I'm not sure how I missed it. Anyway, I'm delighted with the outcome. Judging from the calibre of your advice to me, I''m not all surprised though. You are clearly at the top of your game and you are clearly very good at what you do. In essence, you were dealing with two cases. Mine....being the second...lol. I am soooo grateful to you Lea_HTH. I pray that you'll be blessed with the very best of everything in life!

Thank you so much....once again.

[Lea_HTH]

I am very pleased that it has worked out for you today. Well done - you did the work yourself, so have a nice glass of wine or something special tonight.

 

You're obviously very excited - it definitely comes across in your post - but I am a little unclear: did the CJ hear your appeal and stay the eviction or has he given you permission to appeal and allowed you to bring your documents with you when you get the hearing date?

 

If the latter, have you got everything prepared, and when will you next be in court?

[messina67]

It was the latter....permission to appeal ,on the proviso that a specified amount be paid to the Claimant and a hearing date is scheduled for 14th February. The order also includes that supporting documents be supplied on the day of the hearing. I know.....I'm terribly excited. Whilst I appreciate, we haven't been given the all clear yet and there are still obstacles ahead, I just feel soooooo relieved to be able to drive into the entrance of our home today and not being petrified about changed locks and a Notice of re-posession on my door.

 

With regards to having everything prepared, we will re-submit the original documents as they were not perused today. This includes a skeleton argument. Yep...a skeleton argument in my "lay person" words....lol. However, I don't know what else to add in the bundle. I'd be grateful for any suggestions.

 

P.S. One of our grounds for appeal is based on fault in finding of fact. This fact specifically relates to the counsel of the mortgagee denying that the mortgagee did not refuse payments in the period leading up to the warrant being obtained, and this contentious issue was very instrumental in our initial application being dismissed.

 

The fact of the matter is, this is the truth (strange as it may seem). The mortgagee denied and refused payments (insisting on full arrears) Incredibly, we have evidence of a complaint letter made by me to the mortgagee two years ago which relates to one of their rep. deliberately denying the offer of payment (falsely claiming that it was overdue and then demanding the full arrears with a threat of obtaining a warrant if not complied with) We also have a response to my complaint from the mortgagee accepting that their rep's behaviour was unacceptable and upheld my complaint (after listening to their recording) Interestingly, we brought these letters to the Judge's attention today and he took on board that our claim regarding their refusal of payments is valid. So much so, that he has incorporated a clause in the order, to pay at the court in the event of their refusal.

 

So I'll also include those documents regarding the refusal of payment, in the bundle. Am I right in thinking that this area suffices as a fault in the finding of fact? I appreciate it was denied by the Claimant's counsel, however, it aided in the negative outcome. Is this logical? Any suggestions re-the bundle and the upcoming appeal will be very much appreciated.

 

Thanks a million..

[messina67]

Hello all,

 

Just to give an update. I went to court on 14th February as planned, the appeal was heard and a stay of eviction was GRANTED! We are so delighted and relieved! I was on my own (unfortunately my husband was ill). I was without representation as we genuinely couldn't afford the astronomical charges we were being quoted. I literally battled for 2 AND A HALF HOURS against the barrister representing the mortgage provider.....and WON! I was very apprehensive, however I was so passionate and driven and this was clearly instrumental in achieving this great outcome. At the start of the hearing, counsel for the other side was extremely confident. However, his confidence completely DISAPPEARED by the end.

 

At the previous hearing, the Judge ordered that we compile a trial bundle and bring it on the day, so as to avoid our documents being misplaced by the court, as what previously occurred. The documents in our bundle were crucial and provided overwhelming evidence of all our assertions relating to the unreasonable behaviour of the mortgage provider. The Circuit Judge took everything on board and his judgment was in our favour.

 

This goes to show that....there is justice in the world. I wholeheartedly advise anybody who is going through a similar experience, to keep trying, pull out all possible stops and fight for your HOME! There is light at the end of the tunnel. Good luck to anyone who is experiencing similar issues!

 

Bye for now...