Nationwide - possession order, case adjourned, what next?

[NatashaR]

I hope somebody would be able to assist me with this. A couple of months ago the money I was getting from DWP for my mortgage stopped (I am on JSA income-based) and I started racking up my mortgage arrears. Up until then I was able to keep up with my full repayments with some help from "external sources" (mainly friends). When that happened, I did contact the lender to let them know that I'd be able to pay the interest on my mortgage, but nothing else as I couldn't afford it.

 

Even though I spoke to them on numerous occasions and they verbally accepted that I am going to pay less (though I never thought of asking them to confirm anything in writing - silly me!), about 3 months ago I received a demand letter to pay ALL the arrears, the whole mortgage (around £115,000) or else. I did contact them then to let them know that at the present time I cannot afford either and that the money I get from DWP barely covers my most urgent needs, though I am able to pay the interest. They didn't budge and after that I received a solicitors letter giving me 15 business days to either clear the arrears or pay the entire mortgage, otherwise they will apply for possession order. As I wasn't happy with the way I was treated (their stance hardened significantly after I received the demand letter) I made a complaint to them.

 

They did respond, though quite late and did not address my points. In the meantime I received my court papers and found a solicitor which I paid to represent me in court. I was advised to complain to the ombudsman as they haven't followed the action protocol and that is how we were able to adjourn the hearing for the start of next month. Unfortunately, I can't afford to pay any more solicitor fees and I am on my own with this (no legal aid as I don't qualify).

 

What I am not clear is what happens if I have to make a court appearance and there is no decision from the ombudsman? Is the case going to be adjourned again? Similarly, if my complaint (about the lender not following the protocol and not treating me fairly) is upheld what then? Do we start from square 1? Is the judge likely to dismiss the case on the basis that they did not comply? Also, if the ombudsman sides with the lender, I guess I am stuffed and there is nothing to prevent them from getting possession of my property, is that correct?

 

Many thanks.

 

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[Lea_HTH]

If there has already been an adjournment due to failure to follow the pre-action protocol, the idea behind that adjournment would be for the mortgagee to comply with the PAP during the adjournment period. Your complaint will probably not have much of an effect on the court proceedings because the court will look at the reality of the matter, and affordability of the mortgage, and unless you are able to offer the CMI plus something towards the arrears which will clear them before the end of the term of the mortgage, the court's hands are effectively tied. You should try making an offer in writing to the mortgagee, requesting that they place you on interest only, and inform them that under the PAP they have 10 days in which to respond to your offer. You should also indicate in your letter that the MCOB states that possession should be a last resort and that the mortgagee should give consideration to a period of interest only if this will assist the mortgagor in meeting the payments.

 

They cannot be forced to give you an IO period - but they are obliged under the PAP to respond to your offer/request in 10 days.

 

If you are on benefits, why do you not qualify for legal aid? (Presumably your capital in the property is too high?)

 

The FOS decision, as indicated, has no real bearing on the possession proceedings - so don't try to rely too heavily on that. It is only likely that the possession proceedings will be adjourned again if the mortgagee has failed to follow the PAP during the adjournment - they can usually do this quite easily by sending letters they should have sent and by responding to any offer you put to them in writing.

 

The case isn't going to be dismissed unless they have failed miserably on something and there is no real cause of action. This is not likely based on what you have written, so unless you have missed something fundamental out of your post, don't expect the possession proceedings to be dismissed - there'll be a decision one way or the other.

 

The FOS finding for the mortgagee has nothing to do with what the judge will decide in the possession proceedings - the judge will decide on an order based on your ability to pay.

[NatashaR]

Thanks Lea. The adjournment was because we've submitted a complaint to the ombudsman, not because of the lender not following the protocol - even though that is one of the points of the complaint, this is yet to be decided by the ombudsman.

 

I have no idea how long would that take (to get a decision from the ombudsman), hence the questions I posted already: "What I am not clear is what happens if I have to make a court appearance and there is no decision from the ombudsman? Is the case going to be adjourned again? Similarly, if my complaint (about the lender not following the protocol and not treating me fairly) is upheld what then? Do we start from square 1?". Would you be able to address these please?

 

Also, what is pap, cmi and mcob?

 

You mention that I need to write to the lender and ask them to convert the mortgage for me to pay only the interest. How long is the "norm" for this - 3 months, 6 months, 12 months, 24 months?

 

Your assumption that I don't qualify for legal aid because the capital in the property is too high is, unfortunately, correct.

 

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[Lea_HTH]

If the case was specifically adjourned to await the outcome of the complaint to FOS, then it may be adjourned again. However, since decisions from FOS can take up to two years, the mortgagee may press on the prejudicial issue (to them) of the delay.

 

Yes, IF the hearing was adjourned for the specific reason of the complaint then it MAY be adjourned again. I am going to presume you had a deputy district judge or perhaps one who was not too experienced, as the failure to follow pre-action protocol (which is what PAP stands for), is something the court can adjourn for the mortgagee to remedy by complying. It is merely paperwork - perhaps it is the issue of 'treating you unfairly' that is being taken more seriously than the lack of following protocol - I can only guess.

 

If your complaint is upheld, then the FOS will tell the mortgagee what they need to do in order to rectify the matter - will it mean they have to start again? They can do that right now by withdrawing the case, following PAP and reissuing possession proceedings. What they actually will do is anyone's guess.

 

CMI = current monthly instalment

MCOB = Mortgage Conduct of Business

 

Ask for the period of time you think you need to get back on your feet.

[NatashaR]

Thanks again Lea. Apologies for this, but what do you mean by "the mortgagee may press on the prejudicial issue (to them) of the delay"?

 

I have no idea whether the judge was a deputy or not (if I ask my soicitor who represented me, would he know?). I take your very good point about the lender quickly "withdrawing the case, following PAP and reissuing possession proceedings" - this is what I am afraid of: if I write to them and ask for paying the interest only option, then they may as well reject it (as they are under no obligation to accept anything), say "we are compliant now" and wash their hands off it and proceed with the new court hearing, regardless of what comes out of the ombudsman.

 

What I am trying to say is that I think if I write to the lender now before the outcome of the ombudsman is known, I'll play right into their hands, particularly if they reject what I propose to them.

 

One other thing: if I disagree with the ombudsman's decision can I ask for a review/appeal? If so, can a court hearing be adjourned because of this - in the same way as it would be if there is no decision from the ombudsman?

 

Also, if my complaint is upheld (particularly the part of the lender not treating me fairly), can I ask (via the ombudsman?) for a compensation or does this need to be via separate (civil?) case?

 

Lastly, I am thinking of asking for interest only option for up to 12 months or when I am able to stat work (whichever comes sooner) - would that be considered reasonable?

 

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[Lea_HTH]

Any delay with no payment is prejudicial to the mortgagee - hence they will use that to persuade the judge to make a decision rather than await an outcome from FOS. In actual fact, the two issues whilst linked can be dealt with separately.

 

Forget the 'play into their hands' - this is about you meeting your obligations to pay your mortgage, not about you trying to score one over on the mortgagee, or the mortgagee trying to score one over you. You failed to make payments and they are doing what every mortgagor is warned of when taking out a mortgage 'if you do not keep up repayments, your home may be repossessed'. So make an offer and pay it - if you keep making offers and never pay, that'll look bad in court. If you make the offer of what you can afford, then that will look great for you when the court comes to make its decision. One way or the other, a decision at court will be made, so whilst you have the complaint decision to wait for, it doesn't negate your obligation to continue to pay the mortgage - the mortgagee can withdraw this case and start again, but they probably won't as they will wait to see what the judge says at the adjourned hearing. If you continue not to pay during that period of time, they'll just say affordability is an issue, and if they can get the judge to agree to that, then possession will follow. You're not doing yourself any favours if you don't pay anything - even if what you can afford is only the interest plus something small towards arrears.

 

The court is not going to continuously adjourn unless there are substantial reasons behind your complaint. You've yet to state what the 'unfair treatment' is.

 

What kind of compensation do you think you'll get?

 

As I said before, ask for the time you think you need. Even if they refuse, start making payments as per your offer.

[NatashaR]

"Thanks" Lea. No payment? Where did you get that from? Are you working for a bank by any chance, because judging by your response above you'll be very good as a solicitor there! I thought that I was going to get some help and assistance on this forum, but I see I was wrong and this is a complete waste of my time. Thanks, but no thanks.

 

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[Lea_HTH]

It's not rocket science - you have been to court for possession proceedings, ergo you have arrears, which clearly indicate NON-PAYMENT.

 

Many people don't like straightforward advice - those are usually the ones that fall flat on their backsides and lose their homes. I'm a lawyer, I defend possession proceedings - so get over yourself and take the advice given, it's pretty much the best you'll get because the solicitor you saw clearly just earned his fee for the day and didn't bother telling you what you needed to do during the adjournment.

 

I won't waste my time further - I don't do this to gain your gratitude, but I don't tolerate ignorant, stroppy responses because I don't sugarcoat my advice. The problem is yours.