F&F secured loan with Elderbridge (old First Plus/Barclays) - coerced debt and selling house

[Myfamily]

Hi All,

 

It's been a while! But back needing a bit of help

 

I have my last hearing tomorrow (10 th Jan) eversheds wrote to me just before xmas saying that I should make and offer etc and their client MAY go for a suspended possession order at the hearing.

 

So I want to argue a couple of things

 

1) I don't think they should be granted a suspended possession order, due to me paying under an unfair contract etc.

 

2) I want to make sure that we both bear our own cost, don't see why in should pay theirs for the same reason as above.

 

Not sure what else I should say at the hearing, can anyone help me with the wording for all this please?

We don't qualify for the mortgage rescue, we earn too much and our house is valued more than most houses in our area (large outside space attached to it!)

 

They are the ones with the unfair term, so why should I get stuck with a suspended possession order? How do I tell the judge this? I want to tell her that it is unfair that they are granted a suspended poessession order. Do I have to apply under section 140B of the consumer credit act 2006 unfair relationships?

 

I need to write a witness statement and submit it today for the hearing tomorrow.

 

I want to say that I can pay £843.31 plus something towards the arrears so I'm going to go with a total of £900 per month.

 

Now another sticky problem is I cannot make the first payment untill the end of Feb either, as I am still re-jigging things around and my husband is expecting his higher pay in Feb. - How do explain this?

 

 

I have fought the infair terms part from the my first defence which is the part they lost, but they won the part of the case regarding the agreement that interest would be frozen, so i want state that parties should bear their own costs (i should not have to pay theirs)

 

I am so stuck with trying to make it all work and make sense, also in a bit of a panic about what to do as Evehersheds are tryig to claim 30k in costs!

[citizenB]

aghh, you havent given us much time.. I will send out some S.O.S for you. However, people will be at their day jobs now, so you might not receive any responses until later on this evening.

[Myfamily]

I know citizen, I'm so sorry.

 

Had a lot going on lately - including a terrible christmas so been feeling very depressed and just couldn't face all this again! Just want it over but don't want to get stung!

 

I will keep checking back, hopefully someone will see this and have pity!

[steampowered]

There's a bit of a gap between your latest post, and the last we heard before that. They were ordered to serve a statement of account by 14 November. What does it say?

 

Surely your monthly payments should now be made at the original interest rate? Are you able to afford these payments?

[Myfamily]

Hi Steampowered,

 

Yes, sorry you are right. They have given me the figures. CMI is £843.31 per month and I need to make an offer on top for the arrears, which are £12,000. I want to offer £900 in total. Term left is 210 months.

[sequenci]

As far as the payment arrangement goes I think having a suspended possession order would be a very good thing - the key reason is that the order binds both you and your lender. This means the arrangement is set by the court and gives you a decent degree of protection.

[steampowered]

Its important to check the calculation carefully. Presumably the whole thing needs to be recalculated from when the lender first applied the increased interest rate. You need to check that their calculations properly take into account both the fact that your required historic monthly payments and the accumulated interest should have been lower, which should reduce the arrears.

[Myfamily]

Hi

 

Sequenci - I'm sorry but I have to disagree, I have spent years paying on a contract which had an unfair term in it, so effectively overpaid for years, I asked for help and I got taken to court and made out to be a liar. I feel that a suspended possession order would give them far too much power.

 

Hi again Steam - I have a friend (an IFA) checking the calculation for me, but is taking him some time, I am thinking about an adjournment but not sure the judge will agree this.

[sequenci]

Hiya,

 

Well it's something that you can fall back on as a last resort. As you say, you've other arguments that need to be considered - but always have the prospect of a SPO in the background to use if all else fails.

[Myfamily]

Hi Sequenci, yes, I suppose you're right there, would like it to be a last resort really as I just don't think it's fair after how they've treated me. I've not really been able to have proper negotiations as it's all been part of a re-possession.

 

What do you think about asking for an adjournment, some bullet points below that I was thinking about.

 

1) Given the considerable change resulting out of the adjustment to the account we ask the court for an adjournment so as to address the Pre action Protocal re possession

 

2) We ask this in respect of the aims laid down in section 2 of the protocol

 

3) We also ask in respect of “Initial contact and provision of information” section 5 parts 1-3

 

4) We aver that having successfully challenged clause seven an adjournment is needed in order to allow both parties to address these points

 

5) In addition to this we would ask the court to rule that both sides bear their own costs in this case

 

6) The Claimant is claiming £30K in costs yet has lost the contentious issue in this case, irrespective of the outcome of the possession hearing we put it to the court that we should not be held responsible for these costs, and that an order for both sides to bear their own costs, to date, is the fairest way to achieve this.

 

7) Furthermore we aver that an award of costs in the region of £30K or even shared costs of 50% (or even less) would be unfair upon us and in this context constituent an unfair credit relationship under sec140 of the CCA.

 

8) We do this in the knowledge that had it not been for the unfair term costs would have been as much as 90% less

[citizenB]

firstfamily, it has been confirmed that you have been overpaying, has that money been returned /deducted to the account ?

[Myfamily]

Apparentely it has, this is what i've got the IFA checking though cos I have been really struggling with the figures (i'm sure they've deliberately made them ahrd to understand!!)

[citizenB]

Apparentely it has, this is what i've got the IFA checking though cos I have been really struggling with the figures (i'm sure they've deliberately made them ahrd to understand!!)

 

Aha, righto I guess it is could be a little complicated because it isnt just a case of you having paid £x amount over X amount of time, is it.. there will be increased interest rates and Libor and stuff to get mucky with

[Myfamily]

believe me citizen - it is a living nightmare!! Can't wait till it's over but I don't want to rush, i'd rather adjourn if I can and try and sort it out.

[Mike_hawk]

Did it comply with the order by 14th November?

 

Costs reserved, no decision until the case is concluded

[Myfamily]

Well, by the 14th they provided really lame screen prints which were effectively useless. They actually sent me a proper comparison and re-calculation on the 6th Dec 2013, will this make a difference?

[Mike_hawk]

Well, it didn't comply... debatable whether it has still if not served in a format you understand. 22 day delay really should be brought to the courts notice. Not sure if the DJ would consider it prejudicial to your case.

[Myfamily]

Would I be able to add this to my witness statement for tomorrow? I mean basically I got it after the 6th (it was dated the 6th) and I really couldn't understand it, what with Christmas and new year I had no time to really go over it and get my IFA to go over it to check.

 

What do you think?

[Mike_hawk]

I think that would be sensible, clearly its calculations require verifying.

[Myfamily]

O.k. I will add that to my witness statement, I am not an accountant I just could not do it myself but imposible at that time of year to get help with it. Do you think all of the this and the bullet points above are enough??

[Mike_hawk]

Play the fairness issue and perhaps refer to the other sides delays as prejudicial, it is after all a financial institution with a myriad of facilities at its disposal yet it took 2 months to recalculate the loan. How could the court expect a layperson to check and verify those figures in half the time?

[Myfamily]

Mike, I know it's really cheeky of me, but again as a layperson! WOuld you be able to give me a sentance to this effect that sounds good, please. i.e how am I saying it prejudicial (i never understood the prejudicail stuff)

[Mike_hawk]

Not sure, I suppose you could refer the court to the amended objectives in CPR1.1 and ask that it provides the claimant with no relief from sanction in respect of its tardiness.

It would seem a little out of place to award it costs when its actions created the case and protracted the issues from being settled.

[Mike_hawk]

Ooer, I'd have to think about it for a while first. You really want the w/s to leave no holes for the other side to wriggle through and I may not be the best person to ask.

I'll post back on here later if I can come up with something useful

[Myfamily]

I understand, but any help is so greatly appreciated and would probably be better than I could do anyway, everyone here has been so great and far more knowledgeable than I am! , it's how I got as far as this so I am very gratefull