Help with N244?

[mugwump99]

Hi CAG,

I realise I am leaving it a bit late but can anyone check my attached witness statement which I am hoping to take to court tomorrow with my N244?

I have blacked out my name and other details for obvious reasons.

Edited February 16, 2015 by mugwump99
Attempted to replace attachment - unable to do so.

[f16]

You need to remove the Case No.

 

Site Team notified.

[AndyOrch]

Please remove all identifiable data from your upload....upload unapproved.

 

Andy

[mugwump99]

I did black out the relevant details on my first attachment however here is a new attachment with all details replaced with === (PDF format)

[Lea_HTH]

I did black out the relevant details on my first attachment however here is a new attachment with all details replaced with === (PDF format)

 

Your statement is poorly laid out - re-type it and add a number for each new paragraph.

 

Did you apply to set aside the possession order - because if not your second 'reason' for your application is invalid.

 

Your argument about a 'lawful contract' is seriously flawed. Even if there wasn't a signed contract, the loan would be equitable. Is there a charge on the property - one presumes so since a possession order was granted. Suggestion: remove this statement - it's not one you can argue in a court of law.

 

You then change tack with reference to CICB interest rates and GEM interest rates - the two, according to the other information you have, are two different things - so why are you comparing them? If you want a judge to understand, you'll have to explain it better and point to exactly what it is you think is wrong and why.

 

The loans referred to as A, B, C - did you have any further advances, is one for commission, is one interest based? You don't provide enough information - so how will the judge know what you are talking about? When the PO was granted - what was the money judgment amount for? That will give you a clue as to whether the amounts claimed are similar or close to the loan amount you think you had, and the loan amount detailed in the ABC figures.

 

Have you cleared the funds? You state you can by end Jan 2015, it's mid February. No point in telling the judge you can clear them when you haven't done so - even if you are still in discussions about how much is owed, there is nothing stopping you from paying what you THINK is owed.

 

The solicitors costs are contractual and will be in the terms and conditions provided to you - the judge won't be interested and has no jurisdiction over them. Which is why, with mortgage possession cases, judges never award costs; they're contractual, the judge doesn't have to order them because the mortgagee is entitled to them. You can challenge them if you believe them to be too high or unreasonable, but frankly, £800 for possession proceedings seems about right to me.

 

Is the loan term over? You state GEM won't lose out - but if the loan term is over, the court has no jurisdiction, so whether you're paying monthly or not, the court can't do anything in relation to that. The sale of the property would probably mean the judge could order a stay whilst the sale was progressed.

 

If the loan term isn't over, then you are far better having a discussion with the judge about clearing the outstanding balance in the remaining term of the loan by upping payments (i.e. a Norgan compliant offer).

[mugwump99]

Hi Lea,

You probably remember my earlier posts - this has dragged on and we have been unable to raise the stated balance but we still have cash buyers as a last resort.

To answer your points we didn't know we could ask for a set-aside (Isn't that the purpose of an N244?) we have asked soliciors, cab, forum's, etc. and been given very little advice of any value.

There is a charge on the property.

Interest Rates: We have queried this many times with GEM and their answers are completely baffling!

They incorrectly stated we were on a fixed rate, then apologised and said we were on a variable rate, however they have fixed the rate at 8.44% since 2009 whilst their base rate has been 4%.

I mention their reply in my statement were they refer to CIBC's rate.

Loans A,B,C - as I said I have sent a request to GEM for additional info under the SAR as they have provided no proof of an agreement.

As far as I'm aware there was no 'money judgement' the judge just said we were in breach of contract as the term had expired and he had no option.

I didn't state I have cleared the funds, I said if they only had a claim on the original £48k (Which is the only account they have produced docs for) my spreadsheet shows we have paid £31k even at 8.44%, which would leave an oustanding balance of approx. £31.4k according to GEM's statement dated 30th Jan 2015 furthermore if the interest rate should be 4.5% instead of 8.44% that balance reduces to £27.1k - We can probably raise this amount via a personal loan.

Solicitors costs: GEM have added 5 amounts without notifying us (Only notified £240-00) and I believe they are accruing interest which I have been told they cannot do.

The loan term expired Jan 2012 which is why we were told we were in breach of contract. My point that GEM won't lose out is that we have paid over £58k since GEM took over our mortgage in 2004 and we are still paying 8.44% plus 33% extra per month so they are hardly out of pocket!

I'm afraid your reply has just dashed any hopes I had and I'm back to square one.....mugwump 99

[Lea_HTH]

I don't remember.

 

An N244 can be used to apply for a set aside or to stay a warrant. But you have to state what you want on it. In this instance, there's no point in you applying for a set aside, the PO was validly granted. The reason you have received 'very little advice of any value' is largely because there is no advice to give you that will help you because your mortgage term is over.

 

Solicitors costs, whilst unpaid, can incur interest. It's just another outstanding debt. Your terms and conditions will undoubtedly refer to their contractual right to interest on any sums outstanding.

 

You have had an additional three years past your loan term to resolve this (i.e. by selling or remortgaging) and for some reason appear to prefer the unhelpful (at this stage) activity of chasing your tail (trying to argue points that no longer have any validity - e.g. the interest rates).

 

GEM won't lose out because they have a possession order. Your option is to sell and ask the court for time to do that rather than allow possession - but beyond that, there's not a lot a court can do for you at this stage.

 

Far better to get accurate advice than to waste your time on something that won't work and which will ultimately dash your hopes anyway.

 

You said you had cash buyers - get selling.