House repossessed by Oakwood Homeloans because of confusion, can we get it back?

[Danny321]

I had a court order to pay my monthly payment and addition £600 on top, also 2nd month was to pay £6000 to wards arrears and followed by the monthly payment and £600 towards arrears,

 

I had to go abroad in an emergency and set up a standing order but with my luck I inserted the wrong account number so the payments didn't leave my account,

 

I returned after a long 2 months in a saturday to find out the following Tuesday an eviction is set, I called oakwood homeloans first thing Monday morning and made an arrangement to pay the money I should have paid till this date according to the court order (£7400) and send the mortgage company proof of my passport I was in the country and they would cancel the eviction provided they gad the proof and cleared funds,

 

all that was done but the eviction still went ahead, I could have gone to court and applied for it to be suspended as I was paying a large amount but I didn't because I had agreement with the lender and they the payment of me and went if there word,

 

30 minutes before the eviction they told me they would not cancel it as I was the legal rep of the property as the mortgage was on my Kate rides name and they want to see done additional proof that I had the intension to redeem the mortgage.

 

But thus was not asked from me when we originally spoke was advised if this 30 mins before eviction. Is there anything I can do to get the property back.

 

Rapid response would be appreciated

Edited March 20, 2013 by honeybee13
Spacing.

[honeybee13]

Hello and welcome to CAG.

 

I've started a new thread for you and put some spacing into your post. If you're able to put paragraphs into what you type, you will normally receive more replies.

 

The forum guys should be along later.

 

My best, HB

[Danny321]

Thank you

[Danny321]

I will explain my situation in full.

 

I went court early December 2012 to get a possession suspended, I offered to pay lump sum of £6000, and monthly payment plus £600 towards arrears. It was accepted by the judge and first payment of monthly payment and £600 was due in January followed by the £6000 in February.

 

On 25 December I had to leave country so I set up a standing order for these payments. But I entered the incorrect account number so the payments failed.

 

In the mean time the lender applied for a eviction, the eviction was dated for the 19 march 2013, I returned to the country on Saturday 16 march.

 

When I got home I realised the payments had not been made so I called lender first thing Monday morning and told them my situation and they came back to me and told me pay January and February payment and send proof you were out of the country and we will cancel eviction.

 

I didn't have any problems with that because I had the money sat in the bank so I made a payment to them of £5000 over the phone as they would not take more than that over the phone and I put £2400 in the account over the counter at the bank. I sent them the proofs of my passport to say I was out of the country,

 

I had gave them everything they asked for.

 

Now it's Tuesday morning they have confirmation of my passport and evidence of cleared funds, now they have decided they want proof of me that I am going to port the mortgage as the mortgage is in my late wife's name and I am legal rep. I told them I in the process of that but had to put on hold as I had left the country, now I have returned I will push for a valuation report on the house fit the remortgage to go in to mine and my daughters name, but they insisted they wanted proof. I explained to them no one mentioned to me they would want this information if they did I would have gone to court and sat in front of a judge and got eviction cancelled but didn't think it was necessary as I had agreement with the lender,

 

Basically the lender made me an offer to stop the eviction but had on intension to stop it. Even though there calls are recorded and each call has been logged with note of our discussion,

 

I have been told I should fill out a n422 and see a judge as the court judgement was bought up to date as requested by the lender.

 

Have I got any chance of retaining the property back as I believe the lender lied to me?

 

Sorry about the long post but I thought you should know the full situation to pass your best advise

[Danny321]

And also the court bailiff even advised me to go to court and ask to see a judge as the lender advised her payment had been made but they still wanted her to along with the eviction.

[Desperate Daniella]

Hi Danny, and welcome to CAG!

 

Ell-enn is the best person to deal with anything regarding repossessions, and I have hit the triangle and asked for her to come to your thread.

 

DD

[Danny321]

Thankyou

[Ell-enn]

You should certainly apply to the court to have the eviction overturned. I'm at work at the moment so have limited time to assist you. I have affixed an N244 form here for you and will try to look in later this morning. Ring your local court and ask if there is a judge today who would hear an emergency application.

 

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=31144&d=1320168595

[Danny321]

Thanks for your reply, i have completed this form and they have me a date for this Friday coming. What are my chances to getting the property back as I paid £7400 to date and there is still arrears there of 6000 but I can pay them 600 on top of my monthly payment. Just like the court initially ordered,

 

What are my chances? Have you come across this situation before?

[Desperate Daniella]

Hi Danny,

 

Nobody can give an exact prediction about what happens in any Court, but the good things are that you have paid the £6,000 you agreed for February and in fact paid a further £1,400. You have proof that you were out of the country. You can also, presumably, prove that you will be able to settle the outstanding arrears of a further £6,000 by 10 monthly payments of £600.

 

If you have the calls recorded I would make sure you take those with you to the Court with the means to play the tape if necessary.

 

Hopefully they will agree to cancel the eviction and suspend the repossession order.

 

Ell-enn will advise further.

 

DD

[Danny321]

I don't have recorded calls but the lender does.

[Ell-enn]

Hi, I have asked Lea_HTH to have a look at your thread as she may have more experience of your particular situation (i.e. the repossession has already taken place).

[Desperate Daniella]

I don't have recorded calls but the lender does.

 

What a shame you don't have them.

 

Let's see what Lea_HTH advises.

 

DD

[Danny321]

Yes I know but I don't think the judge will accept call recordings in court.

 

I spoke to the gentleman in the possessions department at oakwood homeloans, I told him that I sent payment and proof and you required more proof but didn't tell me till the last minute, so I asked him to go through all my notes for each call since Monday morning and there was no mention of redeeming the mortgage until the day of the eviction.

 

He did say he was going to speak to all the advisers I spoke to and ask what they advised me and get back to me but I know he isn't going to call me. Even if he does it won't be in my favour.

[Desperate Daniella]

Depends on the judge! But anyway you don't have them and I doubt if Oakwood would supply them.

 

The important thing is to be prepared for the emergency application hearing.

[Danny321]

How can I prepare any advise for me. I have my accounts for my business to show my income I have proof of my sons rent from a commercial property going in to his account I have wage slip of my daughter showing her salary as they live with me and contribute by giving me £300 each a month,I have my statement showing the £5000 card payment made, I have a recipt of £2400 paid at Barclays in to oakwoods account.

 

Is there anything else I need.

[Ell-enn]

Hang on and see if Lea is able to advice further. Did you explain in the N244 that you were going to take over the mortgage yourself?

[Danny321]

I mentioned the situation about payments I made and proof I sent, also did write that everything that asked for was met by me, but on last minute they asked for proof of redemption 30 minutes before eviction,

 

When you fill out a n422 form does the judge see it before I get a court date, what I mean is who decides I can see a judge?

[Danny321]

I have been advised from a couple of solicitors that we have a case for oppression in exciting warrant as the lender advised following payment and proof sent eviction will be cancelled, due to this information I didn't think I needed to take any other actions to prevent eviction,

 

Does any one have more information to this matter and has anyone come across this situation before

[Desperate Daniella]

Sorry. I am a little muddled. Are you saying the lender has now advised the court that they are no longer continuing with the repossession and eviction?

[Danny321]

No sorry I think I have confused you, I spoke to a random solicitor that advised me of the above.

 

I have spoke to the lender just now and I have requested the call recordings of the conversations and the notes they have on system following every conversation. They have advised me they need that by writing and they need a payment of £10 via cheque to release that. I asked if I can pay by card so I can get information instantly but they have said no has to be cheque. (I just think its another way of delaying the matter so I don't have the information of when I go to court on Friday)

 

They have told me they only received the passport copy at 10.49am when I started faxing the document to them at 930am I also sent the document via email at 1021am and they say it was not sent on time as the eviction was due to take place at 1030am but the bailiff did not start the eviction till 1100am as she was late and then she was trying to get through to the bailiff.

 

They are also saying the reason the eviction was not cancelled is due to not getting the front page of the passport on time and for not receiving proof of a remortgage.

 

Initially when the agreement was made the remortgage was never mentioned to me and never requested. Until the morning of the eviction.

[Desperate Daniella]

So are they going to advise the Court that they do not now want to continue with the eviction as the arrears have been brought up to date? Or are they still intending to continue with the eviction unless you make an application to the Court to have it cancelled? Are you speaking to a lawyer at the lender? Or is it someone who is implying they are a lawyer when in fact they are not? If you come to any verbal agreement with someone at the lender's over the telephone you must know their title and whether they are authorized to make an arrangement. Otherwise you must continue with your application to the Court to have the eviction cancelled.

[Danny321]

No the lender is not saying that, I spoke to a lawyer I found on the net and that's what he advised me.

[Danny321]

The lender just keeps saying we asked for this and that each time I speak to them now they just say different things to me

[Lea_HTH]

I think that you should seek the assistance of a solicitor, as the following are complicated arguments that hinge on law, and not just fact (which is the usual element relied on in a stay application). What you are going to do is try to set aside the warrant – and to do so there are only three ways that a court has jurisdiction, 1) if the possession order itself was set aside (unlikely as you could have challenged this when it was first granted), 2. the warrant has been obtained by fraud (not relevant to you as it was not fraudulently obtained, and 3) there had been an abuse of process or oppression in its execution (this is the one you will be relying on – namely 'oppression'). These three points are from case law: Cheltenham & Gloucester BS v Obi.

 

 

You relied on the mortgagee's promise to cancel the eviction if you made payment of 7400 by a certain time/date. They accepted your payments, the 5k first, followed by the 2.4k later, and they then failed to carry out their end of the deal; i.e. to cancel the eviction. This relates to oppression, as, had you not relied on their promise, you would have made an application to the court in time to allow a judge to decide on your application to stay the warrant. Relying on the promise took your right to apply to the courts away.

 

 

To find oppression, there must be an action on the part of someone which is open to criticism, and which has caused prejudice to the occupier. I think your situation falls into this definition.

 

 

There may also be an argument of promissory estoppel – as you acted to your own detriment by paying the money and they backed out of what you were paying the money for (to keep the house).

 

 

As indicated, these are legal arguments, and whilst you could argue them in court yourself, the above is only really basic information. It is likely the other side will oppose and raise other case law in support of their position and to challenge them you'd need to know the law. As I said, a solicitor is your best option.

 

 

Possession is supposed to be a last resort. (MCOB 13.3.2E(f)) – if they have not taken all steps to allow the position to be resolved, then they have failed in their duty to you. Point this out to the court. MCOB 13.3.1 states that a firm must deal fairly with someone who is in arrears. They failed on this point too. (The use of the word 'MUST' is particularly pertinent.)

 

 

As I said, you would be best advised to get a solicitor to represent you as regaining possession of a property after a warrant has been executed is particularly difficult.

 

 

If the facts are not as you stated them to be – for example, if the PO was granted as an 'unless order', then the above advice will not work as failing to make the payments would have allowed the eviction to go ahead. You need to have someone look at all the relevant paperwork to ensure you are not making a fruitless application.