B&W trying to repossess.

[tamadus]

I need a bit of help with this crowd please.

 

It appears my ex wife has managed to run up some arrears on her mortgage with Bristol & West. Total of approx £1800.

 

She is disabled and lives on benefits so DSS pay her mortgage, although they only pay about 470 out of the 570 thats due, Standing order mandates for the extra got messed up 3 times because the account number was wrong so arrears built up.

 

B&W have repeatedly been told that she was due some money from an insurance company who should have paid it middle of October but have delayed. I got some back from bank charges for her, which she also told them about, and she got early november. Illness prevented her from paying $1000 into the account until 21 Nov but she did write and tell them she had £1000 to bank and even sent a copy of the cheque. 6 days later they applied for repossession.

 

She had written telling them she could pay £1000 and could they spread the balance at £10 a month. but they filed the action rather than reply.

 

I suspect their are some charges on the account as well but not sure of their codes, they are listed as SL Counsel Fee and SL collect Fee.

 

Any help would be appreciated. I think the judge will be able to clearly see that she has kept them informed all the way and that she is and has made attempts to sort this but has been delayed by circumstances out of her control.

[stan5131]

Iam pretty sure that the counsel and collect fees are to do with them appointing outside debt counsellors to visit and discuss payment arrangements etc. They then slap on their fees for this, even though you did not request the services of a debt counsellor.

[tamadus]

Thats what I thought the counsel fee would be for but its been applied before the problem arose, so I'm wondering what else it might be. The collect fee could be almost anything

[stan5131]

What else could it be when it is listed as a counsel fee and a collect fee? But then again, these people just make it up as they go along!!!

[stan5131]

I know this happened to a friend of mine. She got into arrears a couple of years ago and they sent a private debt counsellor out to see her to discuss a payment plan to pay off the arrears. they then added £190 for his visit. How much are yours for?

[daisy lighter]

I feel very bad for your ex as this must be really hard for her. It is a terrible position to be in.

 

Sorry about this Tamadus but I am a bit confused by the figures.

 

£1800 outstanding but only three months extra aprox £100 a month messed up by standing orders.

Were the DSS at fault for starting to pay late or are they historic arrears?

Is your ex waiting for a mortgage protection plan to pay out? Is that the insurance you mentioned?

 

If the mortgage payment of £570 is capital & repayment then B&W should not be taking any action against your ex as the £470 paid is more than the I/O payment would be.

If not then the amount owed is roughly 12 - 18 months (allowing for charges) part payment missed or 2-3 full months missed.

Either way it does not amount to be serious enough to go for possession.

 

I agree that judge would not go ahead with a possession order under the circumstances, especially that your ex can reduce the amount owed by a substancial sum.

 

If you have enough time before the court date DPA them as there are bound to be charges.

If not enough time just order an up to date mortgage statement for which your ex may have to pay but which should have the last 12 months charges and payments on it.

This should be provided within 7-10 days.

Use them as part of her appeal if she has to face B&W in court.

 

Is there any way she could remortgage?

[tamadus]

I know this happened to a friend of mine. She got into arrears a couple of years ago and they sent a private debt counsellor out to see her to discuss a payment plan to pay off the arrears. they then added £190 for his visit. How much are yours for?

 

The counsel fee is 95 and the collect fee is 25. The thing here is they were charged more than 6 months apart. So they cant (or shouldnt) be related to each other. I suspect the 25 fee is a penalty which gives her a counterclaim. If they sent a counsellor out without her prior knowledge then she also has a claim for that.

 

Simple fact is they ignored her letters and when she sent evidence that the bulk was being paid they raced out to issue proceedings. I also think the DSS should be paying all her interest charge on the mortgage, so there could be a failing in that department.

[tamadus]

I feel very bad for your ex as this must be really hard for her. It is a terrible position to be in.

 

Sorry about this Tamadus but I am a bit confused by the figures.

 

£1800 outstanding but only three months extra aprox £100 a month messed up by standing orders.

Were the DSS at fault for starting to pay late or are they historic arrears?

Is your ex waiting for a mortgage protection plan to pay out? Is that the insurance you mentioned?

 

If the mortgage payment of £570 is capital & repayment then B&W should not be taking any action against your ex as the £470 paid is more than the I/O payment would be.

If not then the amount owed is roughly 12 - 18 months (allowing for charges) part payment missed or 2-3 full months missed.

Either way it does not amount to be serious enough to go for possession.

 

I agree that judge would not go ahead with a possession order under the circumstances, especially that your ex can reduce the amount owed by a substancial sum.

 

If you have enough time before the court date Data Protection Act them as there are bound to be charges.

If not enough time just order an up to date mortgage statement for which your ex may have to pay but which should have the last 12 months charges and payments on it.

This should be provided within 7-10 days.

Use them as part of her appeal if she has to face B&W in court.

 

Is there any way she could remortgage?

 

The arrears have collected at about 120 a month over the last year, she thought mandates were being paid when they weren't and nobody thought to tell her. She isnt exactly good with money unless its cash in her hand.

 

The 570 a month is interest only, which is why I think it should all be covered by DSS. I only have statements from start of 2006 and have already got an SAR ready to post on monday Court date is 18 January so they can probably stall the SAR until then but in her defence I intend putting that there will be a counterclaim subject to the SAR figures.

 

She has now paid £1000 off this so the amnount outstanding is £790 and she has made an offer of payment for the rest. When she gets the money owed from the insurance company (its a pension policy but comes under the triviality rules) I will personally make sure she settles the balance and I'll make sure the mandates are set up properly.

 

Part of her health problems is she suffers from bad panic attacks so going to cvourt should be interesting.

 

The whole thing looks like B&W are out to make a disabled woman homeless for some reason. She actually has something like£35,000 in equity in the place.

 

I have also found a high loan charge of 1400 applied when she started this mortgage yet she borrowed less than 85% so thats something else they can explain. I'll see if she can find the original mortgage offer tomorrow.

[daisy lighter]

She may be in arrears but she hasnt actually missed one full payment! Thats awful for her.

 

I couldnt possibly see a judge allowing this as long as somebody turns up at the court to contest it.

 

If it comes to court would she be able to handle it ok?

 

The DSS will pay the I/O portion of a mortgage up to £100000 in NI at a predetermined rate - The balance limit of the mortgage balance paid by the DSS may be set at a higher limit else where.

 

I just took a look @ B&W's products and at the minute I cant find any with a Higher Lending Charge under 85 LTV (these do change regularly though)

 

They have charged for counsel - did anybody visit and discuss the details?

These people are called mortgage counsellors but are as described above debt collectors. They are supposed to visit and do a factfind of personal circumstances income & expenditure etc.

The cost of this service and others that may occur should have been sent with the offer pack or at the start of the mortgage.

[JonCris]

tamadus have you considered your ex might be eligible for free legal help

[zootscoot]

Hi Tam,

 

If they apply to court for possession you can rely on s.36(2)(b) of the Administration of Justice Act 1970 which allows the court to suspend the possession order for such a term as the court considers reasonable. If the debtor can repay with in the reaonable time no possession order is granted.

 

Under s8 AJA 1973 in exercising the powers under s.36(2)(b) the court only has to consider the sums payable in arrears not any term which may render the full amount repayable.

 

What amounts to a reasonable period will depend on the circumstances of the case and can include the whole remaining term of the mortgage as occured in Cheltenham & Gloucester v Norgan. This case also stated the factors the court will take into account when deciding what is reasonable:

 

Ability to make payments now and in the future

Likely duration of financial difficulty

Reason for arrears

The period of agreement remaining

 

So basically if she can show she can pay off the arrears over the remaining period the court will not order possession.

 

Other useful info on mortgage arrears can be found here:

 

http://www.bdl.org.uk/images/bdl01_ew_MortgageArrears.doc

 

Hope this helps

 

Zoot

[tamadus]

She may be in arrears but she hasnt actually missed one full payment! Thats awful for her.

 

I couldnt possibly see a judge allowing this as long as somebody turns up at the court to contest it.

 

If it comes to court would she be able to handle it ok?

 

The DSS will pay the I/O portion of a mortgage up to £100000 in NI at a predetermined rate - The balance limit of the mortgage balance paid by the DSS may be set at a higher limit else where.

 

I just took a look @ B&W's products and at the minute I cant find any with a Higher Lending Charge under 85 LTV (these do change regularly though)

 

They have charged for counsel - did anybody visit and discuss the details?

These people are called mortgage counsellors but are as described above debt collectors. They are supposed to visit and do a factfind of personal circumstances income & expenditure etc.

The cost of this service and others that may occur should have been sent with the offer pack or at the start of the mortgage.

 

 

I have a feeling that high loan value charge could come into the category of a penalty charge in which case that will be strongly contested, I'm hoping somebody with a bit more knowledge of B&W mortgage products can advise on it.

 

Apparently from what she can remember some man did show up one day claiming to be from them, she had no idea he was coming and he certainly didnt do anything constructive.

 

I think that why the DSS payment has a shortfall, her outstanding looks to be about 117,000.

 

Don't fear catflap it will be contested in court if only because they issued proceedings immediately after she sent evidence that she had recieved some of the money owing to her and that a big chunk of the arrears would be paid once it cleared.

 

If she remortgaged she wouldnt get the DSS payment for about 10 months so would have to find the entire amount.

 

I can't for one moment imagine a judge finding for them but he may award costs etc against her, in which case he may as well.

[tamadus]

tamadus have you considered your ex might be eligible for free legal help

 

I hadnt even considered that joncris, thanks I'll look into it this week.

[tamadus]

Hi Tam,

 

If they apply to court for possession you can rely on s.36(2)(b) of the Administration of Justice Act 1970 which allows the court to suspend the possession order for such a term as the court considers reasonable. If the debtor can repay with in the reaonable time no possession order is granted.

 

Under s8 AJA 1973 in exercising the powers under s.36(2)(b) the court only has to consider the sums payable in arrears not any term which may render the full amount repayable.

 

What amounts to a reasonable period will depend on the circumstances of the case and can include the whole remaining term of the mortgage as occured in Cheltenham & Gloucester v Norgan. This case also stated the factors the court will take into account when deciding what is reasonable:

 

Ability to make payments now and in the future

Likely duration of financial difficulty

Reason for arrears

The period of agreement remaining

 

So basically if she can show she can pay off the arrears over the remaining period the court will not order possession.

 

Other useful info on mortgage arrears can be found here:

 

http://www.bdl.org.uk/images/bdl01_ew_MortgageArrears.doc

 

Hope this helps

 

Zoot

 

Thanks Zoot I have been trying to locate that case to look at it but I was given the name Norbin not Norgan.

 

I realise the court can look at her circumstances and order them to accept payment over the remaining term, I believe the whole lot could have been rolled into the term but they insist her particular product makes it impossible ( yes I have heard that excuse before)

 

I hoping to be able to show the judge that they have acted unreasonably and outside the spirit of the CPR so he will refuse costs ( which they are claiming £800 for) as that would probably cripple her budget. Every suggestion she has made has been turned down and looking through the correspondance they seem to be on a set course to take possession and increase costs as much as possible.

 

The arrears occured simply because she thought the mandate was paying the shortfall and didn't check her bank balance properly. She never imagined that the account number was wrong or that on 3 occassions when bank staff filled in the mandate for her didnt notice.

[tamadus]

Ok quick update

 

The arrears were paid as promised, and B&W have filed for a discontinuance after the defence and counterclaim were lodged. Phone call yesterday to the court and it is still listed for thursday morning.

 

I can't decide if the Judge has paid more attention to the defence than their discontinuance request, but this should be interesting as we received the SAR data back and it makes very interesting reading.

 

First the arrears were never in the order of those claimed at any time. Secondly the shortfall between the due amount and what DSS pay is half what B&W say it is, they are simply deducting the DSS payment from the monthly due amount, instead of allowing for the DSS payment being 13 times a year. consequently the account is always going to show in arrears.

 

We are going in to reclaim penalty charges and costs against B&W as they filed 4 days after receiving an offer of partial payment with the balance to follow, had they accepted instead of ignoring the offer then their terrible maths might not have come under scrutiny.

 

No idea if they will show but here's hoping will put the final touches to the court pack tomorrow

 

Wish me luck folks, and if anyone is in Telford area a bit of support would be nice with drinks on me afterwards if we win

[zootscoot]

Best of luck Tam!

[tamadus]

Thanks Zoot I think I have almost all eventualities covered, and I think they wont show as they did write saying they had asked for a discontinuance, but we want the chance to challenge their tactics and maths.

[tamadus]

Just got back from the court so an update is in order.

 

It appears the letter asking for an adjournment has still not got into the file (if it arrived) so the hearing went ahead, also B&W failed to turn up which I fully expected.

 

No repossession has been granted (as expected) due to the arrears having been paid. In actual fact the arrears are a lot less than they claimed as they are unable to do simple maths.

 

The judge has ordered an adjournment pending a full hearing in about 6 weeks to consider the issues I raised in the defence and counterclaim, he is also ordering them to attend. He did stress that this will give me a chance to try further negotiations with them as I only got involved after the repossession was applied for.

 

I now need to write them a long letter pointing out their mistakes and hopefully they will come to their senses.

 

Even though time was limited the Judge was very good and understood what I could explain of the situation, but obviously we couldnt go into great depth.

 

I think it was a result, and B&W will soon know they are not going to rollercoast this matter.

[JonCris]

Great!

 

Have BW added penalty charges. If so & as they have been ordered to attend you could ask for full disclosure

[tamadus]

Great!

 

Have BW added penalty charges. If so & as they have been ordered to attend you could ask for full disclosure

 

I believe they have added penalty charges. Firstly there is a charge of £25 because she chose to insure the property with a different insurance company. I can't see any justification for that except as a penalty. There is no extra costs to them, in fact they dont have to arrange the insurance on her behalf so it saves them money. There is also the matter of the council fee, which I beleive was to cover some guy coming out to see her for nothing, as at that time there were no arrears whatsoever, also another £25 charge listed as a 'select fee'. Open to suggestions what that is for

 

I intend asking for standard disclosure in regard to the fees Jon

 

I also intend disputing them adding over £550 in costs for litigation when they had a perfectly reasonable offer on the table. She wrote to them on the 4 Nov when a bank claim cheque arrived asking if !000 was ok on account with the balance to follow when it arrived. 2 days for delivery meant they got it on the 6th, they ignored it and issued on the 10th so ignored the CPR.

 

Their accounting is also very suspect as the DDS make 4 weekly payments to the account. Their maths goes like this

 

amount due £520

DSS 4 weekly payment £480.00

 

Shortfall £40

 

now they expect her to pay the £40 (made up figures) but if you do the maths there actually is no shortfall.

 

12x520=6240

13x480=6240

 

difference between them =0 divide by 12 is still zero

 

In the last 3 months we have letters claiming arrears of over 2000, 1800 and 1300. she paid the 1800 and suddenly is over 800 in advance on the payments.

 

Her actual arrears were closer to £900 because the shortfall mandate kept getting rejected due to incorrect account numbers and she wasnt notified for 2-3 months. Until they sort out their simple accounting error this and probably hundreds of other accounts being paid by DSS are always going to show arrears until that 13th payment arrives. Now how many people are getting their CRA files flagged as in arrears because of a government agency paying 4 weekly instead of monthly ?

 

 

I plan to write a very long letter to them now detailing their errors and asking if they really do want to go into court.

[JonCris]

Great Tam.

 

Yes I don't understand why some of these people can't do joined up thinking.

 

Had a council tenant who because they had a job paid monthly & the rent is collected every 2 weeks in line with benefits was shown as being 2 weeks behind each month followed by 2 weeks in advance after payday.

 

The council applied for a possession order on the grounds that the tenant was consistently behind with her rent. Single mum so couldn't afford to get 4 weeks in advance

 

No amount of trying to get them to see sense would prevail. Got to court judge went ballistic accusing the council of wasting council payers money refused the order & awarded costs against the council, which incidently they still tried to claim from the tenant by adding their costs to the council bill. Only discovered after a SAR was sent.

[tamadus]

That sounds about right for some of them.

 

I'll PM you over the weekend as its after 2 am now and I only got home at 00:30 after starting at 8am

 

I have some concerns that you might be able to help me overcome.

[tamadus]

Quick update,

 

Got notice of the hearing date today. It's set for a 20 minute hearing on 26 March 2007. Fortunately it's a morning session as I have my case against Abbey in the afternoon :o

 

Looks like I have a busy day in front of me on the 26 March.

 

The District Judge has ordered them to file before 4pm on 8 February any reply to the defence and counterclaim.

[JonCris]

Tam which court?

[tamadus]

Telford County Court so miles away from you lmao