Possession hearing at the end of August 2013

[zeek06]

Apologies if the difficulties I am experiencing or the issues raised in this post have already been explained, but could not find anything via the search function which tackles the issues I have.

 

I have taken my mortgage over 10 years ago, but due to the crisis hitting in in 2008, I was laid off and started claiming JSA. At that time, I also applied for SMI, but due to the 13-week lead period, I accrued arrears. Once the SMI kicked in, I was able to resume full mortgage payments, plus paying £5/month on top, to reduce the arrears.

 

This was arranged/agreed with my bank. Unfortunately, DWP stopped my SMI after 2 years (that was back in October 2012) and since then I was able to pay only part of my mortgage (the whole interest, plus a bit of capital, but not much). At that time, I informed my bank of this situation, enclosed Personal Budget Planner and proposed to them to be allowed to make reduced payments.

 

The bank did not respond to me for more than a month and I had to make a complaint in order to get them to respond and provide me with a written decision to my proposal, to which they agreed. In fact, they agreed for me to pay reduced amount to cover just the interest. They also informed me that this decision will be reviewed in a couple of months time.

 

Close to that review date, I've written to the bank again, informing them that, unfortunately, there is no change in my circumstances, and proposed to them to continue with the current arrangement until my circumstances improve and I am able to resume full payments, also covering the existing arrears throughout the entire mortgage period.

 

Again, the bank did not respond to me for more than a month and I had to complaint - for a second time. They then accepted my proposal, informing me that this decision will be reviewed again in a couple of months time.

 

Closer to that date, since I was still unemployed and on JSA, I wrote to the bank again, proposing to them to continue the existing arrangement.

 

Again, no response from the bank for more than a month, apart from a request to provide a Personal Budget Planner, which I did 2 days after receiving that request.

 

Since I was due to pay my mortgage, more than 6 weeks later, I went to the local bank branch and asked to see whether there is any response issued to me (I know they have this information on their internal system, since this is what I did the previous time when I did not have a response from them). None was issued at which point I've made it clear to the bank clerk I spoke to that this is unacceptable and I wish to make a complaint - for a 3rd time. She then called the mortgage desk to see what has been happening.

 

After a while, I was informed - verbally - that the bank accepts my proposal, only for this decision to be reversed 5 minutes later when I started asking "awkward" questions as to when was that decison made and making it clear that I am going through with my complaint as I find it wholly unacceptable that I have to wait for more than a month every time I need an answer from them and I have to either visit the local branch and start asking questions or make a complaint in order to get one.

 

I was also told that due to my refusal to speak to them they are going to take me to court and secure possession of the property. Here is the place to mention, that at the time of my first complaint, I insisted on communicating with the people from the mortgage desk formally, in writing, so that I have it on record what has been said/not said, so that there are no "misunderstandings" and the bank accepted this.

 

Despite my protestations, I was told that this decision stands at which point I left the branch. I also need to mention that I have the entire saga and what went on recorded and have the full transcript of that. I know this might not be admissible in a court of law as the bank did not know that I have been recording this, but I am thinking if I make a witness statement or something, would that hold? If I submit this transcript and/or the voice recording (on a CD/memory stick for example) to FOS, will they accept it as part of my original complaint?

 

A week or so later, I received a paper from the banks' solicitors, informing me that the bank is commencing legal proceedings to claim possession of the property, giving me 15 business days to either pay the entire loan or clear the arrears. In that same letter, they also inform me that the bank have complied with the mortgage pre-action protocol (MPAP).

 

Please note that I still did not have a written response to my original proposal, which I've made nearly 2 months prior to that date. In a letter from the bank, I requested to see a copy of their MPAP checklist to see how they "complied" with it.

 

The bank responded to this by enclosing that form and in the same letter informed me that "due to my financial circumstances and the details of my Budget Planner" they are unable to agree to my proposal (the one I've made to them over 2 months prior and the one which they initially agreed, only to reverse that decision when I made my intentions clear that I will complaint and refused to speak to them on the phone - only communicate formally).

 

In that checklist, at least 4 points of MPAP have not been fulfilled even though the bank claims that they had.

 

After the 15 business days were up, I received a second letter from their solicitors commencing proceedings and a week or so later I also received the court papers.

 

Now, my queries:

 

1. My understanding is (though I might be wrong on this), that if the bank have either treated me unfairly or that they have not followed MPAP, I could complaint straight to FOS and stop court proceedings from going ahead. Is that the case?

 

I've already submitted my complaint to FOS (1st class recorded delivery), enclosing the whole history (correspondence, notes etc), pointing out that the bank have not complied with at least paragraphs 2.1, 2.2, 5.5 and the entire paragraph 7 of MPAP. I still don't have a response or an "official" reference number from FOS though.

 

2. If I can't stop proceedings or the bank decides to go ahead regardless, should I explain to the judge at the court hearing what has been going on and that the bank failed to comply with MPAP and ask for adjournment, allowing the bank to comply with MPAP and also allowing me to negotiate with them? How likely is that request to succeed?

 

3. When should I complete my defence form and submit it to the court? I was told a week before the hearing, so need to know if I still have time for this.

 

4. For the actual form, I am unsure on a couple of questions, like:

 

4.1 Q6: Should I apply to the court for an order changing the terms of my loan? Does that mean that I could ask the court to consider changing the type of mortgage? Does this mean I am going to get a CCJ slapped up?

 

Here is the place to mention that at the beginning of the mortgage, as part of it the bank allowed me to make interest-only payments (interest-only mortgage) for the first 3 years, then I switched to normal capital+interest payments. It would be perfect for me if they agree to switch to interest-only for a fixed period of, say, 12 months until I sort myself out, though I don't know whether this is possible or likely for the bank to agree on this?

 

4.2 Q9: If I have not reached an agreement with the lender should I ask the court to consider one? What are the implications of this? Does this mean I am going to get a CCJ slapped up?

 

4.3 Q22: Do I have any loan/credit debts. Yes, I do, but I've reached an agreement on those with all my creditors and I am currently paying a nominal amount each month. if I specify those, what are the implications for me?

 

4.4 Q27: To give details of any events/circumstances which led me being in arrears. I presume, I have to explain what has been going on since I started accumulating the arrears. I am also wondering if this is the right place to list what has been going on between myself and the bank and should I enclose copies of the relevant correspondence as I did with my FOS complaint?

 

5. Proposals: When reading MPAP and what it involves, I found out that there are quite a few options potentially open to me - options the bank never told me exist, otherwise I would have had them considered in an instant, like changing the type of the mortgage (to interest-only) or capitalising the arrears.

 

So, my question is this: if everything else fails and the proceedings are not adjourned, should I propose to the bank to capitalise my existing arrears and "convert" my mortgage to interest-only for a fixed period, say, 12 months, during which I could pay only the interest? If so, how likely is that the bank would agree to this?

 

I could afford such arrangement, no problem. I could also afford the increased mortgage payments afterwards, as, once in proper employment, I will be able to command a salary between 30-45k/year - the bank knows that, since I had my personal account with them and they know what sort of salary I was able to command and has been passing through that account on a regular basis prior to becoming unemployed. If they conveniently "forget" this, I can "remind" them by producing my P60s for past years as evidence.

 

Failing that, if I propose to the bank to capitalise my current, as well as, any future arrears for up to 12 months, would that work? Obviously, that is less convenient for me as I will be paying much more in the end, but I could also take that option, if nothing else is available.

 

What other potential (realistic) options do I have, given the above? Any advice is much appreciated, thanks!

[citizenB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?325527-CAG-guide-Are-you-facing-eviction-or-repossession

 

I will try and find someone who can help, meanwhile have a read of the link above.

[Lea_HTH]

In all the 'offerings' you have made, have you actually made any payments?

[zeek06]

Thanks citizenB, I'll have a look at these.

 

Lea_HTH, yes, I have - without fail.

 

My 1st proposal was to pay the whole interest due with a bit of capital on top, the bank agreed for me to pay just the interest, so I did that (in a way, I was glad as it was better for my budget). 2nd proposal was to extend the existing agreement further and so was the last one I've made to them.

 

In the meantime I still kept paying the same (previously agreed) amount - regardless of whether the bank have responded to my proposal(s) or not. Even when I've got the court papers, I still kept paying the same sum of money.

[zeek06]

For some reason the reply I posted yesterday evening did not appear, so I'll post it again...

 

I will try and find someone who can help, meanwhile have a read of the link above.

Thanks citizenB, I've looked at the links you provided and they are a good start.

 

In all the 'offerings' you have made, have you actually made any payments?

Yes, I did - without fail. Since the 1st agreement was made, I have been paying fixed amount, covering the interest, every month.

[citizenB]

zeek, I have absolutely no idea why your thread keeps auto unapproving your posts. I will find someone with more techy knowledge to resolve the problem for you

[ims21]

zeek....we are looking at this for you.

 

Please continue to post and we will manually approve them until the glitch is sorted out.

 

Thanks

[Lea_HTH]

Thanks citizenB, I'll have a look at these.

 

Lea_HTH, yes, I have - without fail.

 

My 1st proposal was to pay the whole interest due with a bit of capital on top, the bank agreed for me to pay just the interest, so I did that (in a way, I was glad as it was better for my budget). 2nd proposal was to extend the existing agreement further and so was the last one I've made to them.

 

In the meantime I still kept paying the same (previously agreed) amount - regardless of whether the bank have responded to my proposal(s) or not. Even when I've got the court papers, I still kept paying the same sum of money.

 

Excellent, if you have made offers and actually made the payments, this will look good for you if it goes to court.

 

The court will be very interested in the fact that they are failing to come to an agreement with you, or to reject your offer within the time frames set down in the pre-action protocol (10 days - if I recall correctly) and as a result of their own inaction, their court proceedings are a bit previous. If it does go to court and the offer you made is accepted by the court then you should ask the judge to consider not allowing the mortgagee their costs in the case as there would have been no need for proceedings if they had followed the pre-action protocol and agreed to the sum offered.

 

That said, the court has no jurisdiction over the terms of a mortgage, so they cannot change it to interest only, or restructure the monthly payment amount - that is for loans governed under the CCA 1974. All the court can do is order that you pay the CMI plus an amount towards the arrears which will clear them before the end of the term of the mortgage. But possession is supposed to be a last resort, so you should be writing to the mortgagee, pointing this out to them, and pointing out that you are asking them to consider interest only for a specified period, after which you hope to resume full payment. You should also ask them to capitalise the arrears during the IO period, to prevent you falling further into arrears during that time.

 

The more you can show that you tried to resolve this, the better it will go for you in court - though if you cannot afford the full CMI and the mortgagee refuse IO, then the court may find against you, irrespective of their lack of following protocol.

[zeek06]

Excellent, if you have made offers and actually made the payments, this will look good for you if it goes to court.

I thought as much, thanks! What I was also thinking is this - provided I could ask the court to adjourn the case as the bank have not complied with MPAP (that would be my "safety net" if you like), can I propose - possibly at the hearing - for the bank to use one of the options I listed in my initial post (convert the mortgage to interest-only and recapitalise the existing arrears)?

 

The thinking behind this is the judge and the bank solicitors will know they are in the wrong and I would like to see whether they will have the balls to reject my proposal.

 

The court will be very interested in the fact that they are failing to come to an agreement with you, or to reject your offer within the time frames set down in the pre-action protocol (10 days - if I recall correctly) and as a result of their own inaction, their court proceedings are a bit previous. If it does go to court and the offer you made is accepted by the court then you should ask the judge to consider not allowing the mortgagee their costs in the case as there would have been no need for proceedings if they had followed the pre-action protocol and agreed to the sum offered.

Absolutely! Should I ask the judge for this specifically, or will this be done "automatically" for me?

 

 

That said, the court has no jurisdiction over the terms of a mortgage, so they cannot change it to interest only, or restructure the monthly payment amount - that is for loans governed under the CCA 1974. All the court can do is order that you pay the CMI plus an amount towards the arrears which will clear them before the end of the term of the mortgage.

Does that mean that my (possible) proposal to convert the mortgage to interest-only is a non-starter? Currently, I cannot afford to make full payments, let alone full payments + part of the arrears on top of that - no chance!

 

But possession is supposed to be a last resort, so you should be writing to the mortgagee, pointing this out to them, and pointing out that you are asking them to consider interest only for a specified period, after which you hope to resume full payment. You should also ask them to capitalise the arrears during the IO period, to prevent you falling further into arrears during that time.

This is what I can't understand - should the bank be telling me what my "options" are (as paragraph 7 of MPAP stipulates) and then for me to make the appropriate proposal or should I be making proposals to the bank (a bit like "scatter-gun" approach) and wait for them to accept/reject it?

 

The more you can show that you tried to resolve this, the better it will go for you in court - though if you cannot afford the full CMI and the mortgagee refuse IO, then the court may find against you, irrespective of their lack of following protocol.

That's another thing - if they have not followed MPAP and I have complained to fos (even though I am yet to receive an acknowledgement from them and a reference number - I assume that if I present evidence that I have sent the complaint + the fact that fos has received it - like recorded delivery report+signature from Royal Mail), the case is likely to be adjourned, isn't that so?

 

One other query which I am scrambling my head around - when filling out my defence form, should I present copies of all the (relevant) correspondence and other documents with it at that time or should I just take this with me at the hearing?

 

I am getting conflicting opinions on this: on one hand I was told that everything I rely on should be presented well in advance (with the defence form), but on the other hand, I was also told that because this evidence, 99% of it, is in fact banks' own correspondence, so they are well aware of it, so there is no need for me to include it with my defence form submission, so I should just bring it with me at the hearing.

 

So, which one is it?

 

Again, many thanks for any help and advice received, though I am conscious that I am slowly running out of time and need to know what options I have 9as per my initial post above).

[Lea_HTH]

I thought as much, thanks! What I was also thinking is this - provided I could ask the court to adjourn the case as the bank have not complied with MPAP (that would be my "safety net" if you like), can I propose - possibly at the hearing - for the bank to use one of the options I listed in my initial post (convert the mortgage to interest-only and recapitalise the existing arrears)?The thinking behind this is the judge and the bank solicitors will know they are in the wrong and I would like to see whether they will have the balls to reject my proposal.

 

Firstly, to be abundantly clear, I spend a good deal of my week defending possession proceedings, so this is not me being 'mean' - you need to get rid of the thought that the mortgagee's solicitors are 'in the wrong' - they are instructed by their client to possess the property you gave as security for the mortgage because you failed to make payment. Your failure, not theirs. The law gives you protection, but it doesn't make the failure to pay the mortgage right, or the claim to possess 'wrong'.

 

The court has no jurisdiction over the content of your mortgage contract, so they can't change the terms and conditions unless they are unfair and are, as such, struck out, by the court. This is not going to be the case with a request to move from repayment to interest only - that is a mortgage code of conduct issue, but since possession is supposed to be a last resort, it will not endear the mortgagee to the judge if they have not considered the option of interest only for a period of time. The judge cannot compel them to accept it. He can, however, choose to make an order that reflects it - but he is effectively then just causing the mortgagee an issue and they will appeal his decision (and likely win, even though it might have bought you a little bit of extra time).

 

You can ask the judge for an adjournment based on the mortgagee not following the protocol - it will result in one quite probably, in order for them to comply with the protocol. Complying with it does not mean they have to agree with whatever you are offering or demanding - please be aware of that.

 

Absolutely! Should I ask the judge for this specifically, or will this be done "automatically" for me?

 

You have to be specific and ask for it in the terms I stated. The judge (particularly if it's a deputy) may not realise he has the jurisdiction to do so - it has to be a serious breach in order for the judge to decide that a costs sanction should be applied, so complete lack of following the protocol would be needed. You will need to point out that had they followed the protocol, the parties would not be in court, therefore the costs of such proceedings could have been avoided.

 

Does that mean that my (possible) proposal to convert the mortgage to interest-only is a non-starter? Currently, I cannot afford to make full payments, let alone full payments + part of the arrears on top of that - no chance!

 

No, it's not the same thing. But as I reiterated above, the judge cannot interfere in the terms of the contract unless they are unfair. It is up to the mortgagee to agree to IO instead of repayment - the court cannot force them to, but MCOB does state that possession should be a last resort, and that interest only for a period should be considered. So you need to get agreement from the mortgagee - but there is no harm if they refuse, in pointing that out to the judge.

 

Be careful about stating that you cannot afford your mortgage - if the judge finds that affordability is an issue, he'll have to award possession to the other side. Your strongest way forward is to get an agreement from the mortgagee for an IO period, and if that hasn't happened before the court case, to ask the judge to adjourn as they haven't complied with the pre-action protocol nor given due consideration to your request for IO under the MCOB - mentioning (again) that repossession is supposed to be a last resort.

 

This is what I can't understand - should the bank be telling me what my "options" are (as paragraph 7 of MPAP stipulates) and then for me to make the appropriate proposal or should I be making proposals to the bank (a bit like "scatter-gun" approach) and wait for them to accept/reject it?

 

You're the one in difficulty, so you're the one that should be approaching them to resolve it. But you can't resolve it without their assistance and agreement, or rejection, to your proposals, so they need to respond to you and perhaps come back with what they're willing to accept. They're not doing that, which is why they are failing the protocol.

 

 

That's another thing - if they have not followed MPAP and I have complained to fos (even though I am yet to receive an acknowledgement from them and a reference number - I assume that if I present evidence that I have sent the complaint + the fact that fos has received it - like recorded delivery report+signature from Royal Mail), the case is likely to be adjourned, isn't that so?

 

Nope. I don't know why so many people think this is the case (probably reading advice from people who've never been inside a court except for their own cases and have misunderstood). The court is not bound by any decision FOS makes, so they have no reason to wait for their decision on an issue that relates to court pre-action protocol, when they can decide on it themselves - i.e. adjourn, give the claimant directions to comply to the protocol, and then bring the case back to court.

 

One other query which I am scrambling my head around - when filling out my defence form, should I present copies of all the (relevant) correspondence and other documents with it at that time or should I just take this with me at the hearing?

 

I am getting conflicting opinions on this: on one hand I was told that everything I rely on should be presented well in advance (with the defence form), but on the other hand, I was also told that because this evidence, 99% of it, is in fact banks' own correspondence, so they are well aware of it, so there is no need for me to include it with my defence form submission, so I should just bring it with me at the hearing.

 

So, which one is it?

 

If you have a lot of documentation you must provide it to the judge, and to the claimant, before the hearing - if it's just a page of income and expenditure and a one or two page defence statement, then on the day will be fine. Bundles of paperwork presented on the day will not get read by the judge. Possession proceedings are five minute hearings. The claimant has a right to respond to your defence, and it is up to you to include the documents are relying on, you can't say 'you should have it'.

 

Again, many thanks for any help and advice received, though I am conscious that I am slowly running out of time and need to know what options I have 9as per my initial post above).

 

You're welcome. You need to get your paperwork completed and in to court - preferably by Friday. Don't forget to send a copy to the claimant.

[zeek06]

Firstly, to be abundantly clear, I spend a good deal of my week defending possession proceedings, so this is not me being 'mean' - you need to get rid of the thought that the mortgagee's solicitors are 'in the wrong' - they are instructed by their client to possess the property you gave as security for the mortgage because you failed to make payment. Your failure, not theirs. The law gives you protection, but it doesn't make the failure to pay the mortgage right, or the claim to possess 'wrong'.

All noted and you have my apologies, though in my defence - I am not a solicitor and my legal understanding of these things is close to 0.

 

...since possession is supposed to be a last resort, it will not endear the mortgagee to the judge if they have not considered the option of interest only for a period of time. The judge cannot compel them to accept it.

This is a very good point, which I need to emphasise - a couple of times.

 

You can ask the judge for an adjournment based on the mortgagee not following the protocol - it will result in one quite probably, in order for them to comply with the protocol. Complying with it does not mean they have to agree with whatever you are offering or demanding - please be aware of that.

I understand that. If such order is granted, how long would it be for, normally?

 

You have to be specific and ask for it in the terms I stated. The judge (particularly if it's a deputy) may not realise he has the jurisdiction to do so - it has to be a serious breach in order for the judge to decide that a costs sanction should be applied, so complete lack of following the protocol would be needed. You will need to point out that had they followed the protocol, the parties would not be in court, therefore the costs of such proceedings could have been avoided.

Judging by this and your previous reply, I take it that this only applies if the bank accept my offer/proposal, if I make one, prior to the court date - otherwise no such thing can be considered. Am I understanding this correctly?

 

Be careful about stating that you cannot afford your mortgage - if the judge finds that affordability is an issue, he'll have to award possession to the other side.

That's a very good point - noted!

 

Your strongest way forward is to get an agreement from the mortgagee for an IO period, and if that hasn't happened before the court case, to ask the judge to adjourn as they haven't complied with the pre-action protocol nor given due consideration to your request for IO under the MCOB - mentioning (again) that repossession is supposed to be a last resort.

Yep, in a nutshell - that would be my strategy.

 

The court is not bound by any decision FOS makes, so they have no reason to wait for their decision on an issue that relates to court pre-action protocol, when they can decide on it themselves - i.e. adjourn, give the claimant directions to comply to the protocol, and then bring the case back to court.

Didn't know that, thanks. I was under the impression that if genuine fos complaint is made, then there is a good chance that the case could be adjourned. That, judging by your reply above isn't the case at all - duly noted.

 

If you have a lot of documentation you must provide it to the judge, and to the claimant, before the hearing - if it's just a page of income and expenditure and a one or two page defence statement, then on the day will be fine. Bundles of paperwork presented on the day will not get read by the judge.

There are lots of documents - basically the entire correspondence history between myself and the bank, plus a few notes of the face-to-face meetings I've made at the local branch (about 40-50 pages at the very least!). So, judging by your reply above - I should include them all together with my defence form (though see my questions below).

 

Possession proceedings are five minute hearings. The claimant has a right to respond to your defence, and it is up to you to include the documents are relying on, you can't say 'you should have it'.

Noted, didn't know that they are that short!

 

You're welcome. You need to get your paperwork completed and in to court - preferably by Friday. Don't forget to send a copy to the claimant.

Do I have to send this to the bank's solicitors as well? I was under the impression that I only have to submit these documents/paperwork in court and they take care of the rest, including sending it to the bank?

 

A few other questions still outstanding and I am desperate for an answer as I don't know what to do with regards to the defence form:

 

Q9: If I have not reached an agreement with the lender should I ask the court to consider one? What should I do with this question?

 

Q27: To give details of any events/circumstances which led me being in arrears. My plan here is to write a simple response, saying something like "refer to my witness statement" and then explain it all separately in that witness statement, which will make reference to the various documents I am enclosing. I also plan to create a separate sheet, which just list those. Would that be OK?

 

Finally, my hat off to you, Lea_HTH - you are golden! Your help with this is much appreciated - I can't thank you enough really!

[Lea_HTH]

No problem - just wanted you to be on the right foot with the judge, and they don't like when defendants blame everyone else but themselves. You want the judge to look at the fact that the pre-action protocol wasn't followed, that the mortgagee hasn't followed MCOB (guidance, not written in stone), and that as a result of that, the possession proceedings are not 'the last resort', which is what the Mortgage Code (Conduct) of Business states it should be. You can tell the judge that you fully accept your part in the failure to pay, but you have tried to resolve the issue and have come up against a brick wall with no responses to your attempts to resolve the issue. Labour on the fact that whilst you have had no agreement, you have continued to pay what you offered as you are committed to reducing the arrears (judges like that).

 

An adjournment for them to comply with the pre-action protocol could be as little as 14 days, or as long as three months, depending on what they have to do to satisfy the court that the protocol has been followed. Normally it would be around 14 days.

 

If you make an offer and it is refused, then you cannot ask the judge to not award costs, as due to the refusal the mortgagee is entitled to take further court action. If they continue to ignore your offers and do not respond, then they have not complied with the pre-action protocol, and that is when you ask the judge to consider making an order not to allow them their costs. See my previous comments about it for the fuller picture.

 

In certain other types of cases involving monetary issues, the involvement of FOS can stall proceedings - but not when your complaint is about the lack of following pre-action protocols, a judge is more than capable of dealing with that directly, with the ultimate issue for the mortgagee being that the judge can make an order that refuses them their costs.

 

You should include all documentation. Please write a witness/defence statement, and number each paragraph, and number each appendix for letters, or documents, that you refer to within the defence statement - then when you put them together, preferably in a folder, with tabs to make it easier for the judge, ensure that you have included everything that you refer to in the statement. Ideally you should be making three copies of this - one for you, one for the judge and one for the claimant (a copy to their solicitor is the best way). The reason for providing information to all parties is that it prevents delay in the proceedings - the court can copy and send, but whether they do so in time is debatable, so send it yourself. It's called filing and serving - the former is to the court, the latter is to the claimant/solicitor.

 

Possession hearings are very brief - if the matter needs to go to trial because there is contention or dispute as to the amount of arrears, then it will be relisted with a longer time frame than 5 minutes.

 

If you have not reached an agreement with the lender, then you can give your proposal to the court. If you are offering CMI plus something towards the arrears that will clear the arrears within the remaining term of the mortgage, the court will accept that, and will either adjourn on those terms (depends on how high the arrears are), or grant a suspended possession order on those terms (serious, but if you maintain payments nothing else will happen). If you can't offer the full CMI, and are reliant on the payment being IO, then the court will find itself in an awkward position as it means affordability is an issue, which they are duty bound to look at. Depending on the judge an outright order may follow, though in my experience most of them will adjourn whilst you continue paying what you can, whilst directing the mortgagee to look again at the IO option (but they can't order them to).

 

Yes, your plan re Q27 is fine (see my comment about that above). Keep it simple - don't try to overcomplicate things, don't fill your statement with things that aren't factual (i.e. don't editorialise it - it's a statement, not a story).

 

You're welcome - I am hoping your mortgagee will agree to IO - seems reasonable to at least allow you a chance to get straight.

[zeek06]

Thank you Lea_HTH, all is noted.

 

I just submitted all my papers to the court 1 day ahead of schedule and also sent a copy to the claimant's solicitors so that they have it before the bank holiday.

 

One question: for my part of the correspondence which I attached in my "exhibits" (the letters I sent to the bank) to the court, I included a printout of these letters and crossed them with a word "Copy". I did not sign them, but they are already dated. I did the same thing with the witness statement I sent to the claimant's solicitors - crossed it with a word "Copy".

 

The actual statement I submitted to the court is properly signed and dated.

 

Is that OK - am I likely to incur the wrath of the Claimant's solicitors (can they play "naughty" and say "that is not what was sent to the claimant" for example)? If so, what can I do to rectify this? many thanks once again!

[citizenB]

Not quite sure what you are saying, but I think what you have done is ok.

 

It is normal to send "copies" to the court and the opposition, whilst making the originals (your own file) available at the hearing. Hope that helps.

[zeek06]

Thanks citizenB, let me explain a bit.

 

Originally, when I need to send a letter to the bank, I use my computer (MS Word) to generate the appropriate file (i.e. type the letter itself and save it on the hard drive as a file), then print that letter, sign it and send it to them.

 

Please note that I do not keep a copy of that signed letter (with my original signature in it). What I did instead today (both for the courts as well as the Claimant's solicitors) is to print another copy of the letter using the same file I have on my computer, then wrote "Copy" across it and included it in the bundle/exhibit for the courts and the Claimant's solicitors.

 

I did exactly the same thing with my witness statement for the Claimant's solicitors: printed a copy of this statement from the file I have on my computer, wrote "Copy" across it and then sent it to them.

 

The court's witness statement is "original": it is signed and dated (with a pen).

 

Would that be OK or have I messed the whole thing up?

[Lea_HTH]

It is fine to do what you have done with the letters you previously sent them, as lots of people keep electronic copies of letters and wouldn't have a signed version of the one they sent.

 

It is not, however, fine to wrote 'copy' on a witness statement - whilst it may be a photocopy (no one expects you to print two originals), it IS supposed to be an exact copy of what is filed in court.

[zeek06]

Thanks Lea_HTH, I hope they won't moan too much.

 

My "excuse" would be that they are going to get one copy from the courts anyway, so this is just for their information really or should I resend this (I don't have the actual original as I didn't make a copy when submitted it to the court, so if I have to send them another copy then I have to print a fresh one, sign it, photocopy it and then send that)?

[Lea_HTH]

I think I mentioned somewhere above (can't remember) that the court doesn't always send information out before a hearing that is listed so soon, so you should always serve the claimant with your defence too.

 

Never mind, they can make do with the copy, but may point out to the judge you didn't do things properly. Won't have much effect, but that probably won't stop them saying something.

[zeek06]

I think I mentioned somewhere above (can't remember) that the court doesn't always send information out before a hearing that is listed so soon, so you should always serve the claimant with your defence too.

Noted Lea_HTH, thanks again. The above reminded me of something else too - even though I completed my defence form and sent it with my other documents, I didn't send that form to the Claimant's solicitors? Should I do that separately (I do have a copy of it as the clerk who received my documents bundle was kind enough to make a copy and give it to me)?

 

Never mind, they can make do with the copy, but may point out to the judge you didn't do things properly. Won't have much effect, but that probably won't stop them saying something.

Looking forwards to the hearing next week, what should I be aware of? Should I "negotiate" with the Claimant's solicitors prior to the hearing if they approach me and what should I do/avoid doing?

[zeek06]

One other thing, which I forgot to ask: The Claimant's solicitors did not enclose form N123 (MPAP compliance) with any of the documents they've send me. I know they sent me MPAP "checklist" when I requested it, but N123 is a bit different and shows what the bank actually did to comply with MPAP.

 

Should I explicitly request this from them and should I raise that point with the judge at the hearing (the bank knows that MPAP compliance is going to form an important part of my case, maybe that's why they did not send that form, knowing they have not fully complied with MPAP)?