Received court Paper from these guys this morning Claimant CAPQUEST but send any documents to HL Legal im cant remember if i sent a letter asking for a SAR to these guys before but i will check can someone just run through what i ned to do again i have forgot i need to acknowledge the papers online which boxes do i tick if i am asking for a SAR

Thanks A Million

Hi is it a claim from Northampton bulk centre, if so can you use one of the free imaging sites such as photobucket and post up the particulars of claim so the folks on here can help. If its Capquest's favourite SD then the following link could help:-

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/260863-statutory-demand-cap-quest-4.html

I think this is the request you meant:-

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/581-cca-request-letter

Its an actual claim form from Northampton cc i know i have to defend all the claim I have an address for claimant capquest investments ltd in Fleet Hampshire and the address for sending documents and payments as HL Legal and collections this is were i get confused do i send the sar to capquest or hl legal and do i need to send a cpr particulars of claim money due under regulated ca between barclays bankplcT/skycard

if someone could tell me what to send where i would very much appreciate it many thanks

Subject Access Request to original creditor.

CPR requests go to the solicitors who issued the Summons against you.

So just to get this straight in my tiny little brain sar to sky card and cpr HL Legal or capquest sorry but its so confusing when there are so many companys involved CAp are the claiments but it say HL Legal is where you send documents to

Anything to do with the court claim ie CPR requests for information need to be sent to the Solicitors ie HL Legal.

Any subject access request needs to be sent to the original creditor (ie Barlcaycard) for account information, letters, call logs, copies of Default Notices, termination notices etc

As this is now with CapQuest, I am assuming that the account was sold (assigned) to CapQuest in which case if you have not received a copy of the Notice of Assignment you will need to request it to ensure that they have a right to bring this claim against you and that it has been assigned correctly.

You are going to have to give more information in order to obtain proper advice.

What was the date of issue on the claim form. There is a strict timetable you have to stick to.

date of issue + 5 days for service

+ 14 days to acknowledge online. If you are going to defend all, then that is the box online you need to tick and you will then get an extra 14 days in order to submit your defence.

So if you are going to defend you will have 33 days from the date of issue to submit.

You will need to read the following links, this will tell you how to go about getting information by way of CPR.

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

http://www.consumeractiongroup.co.uk/forum/legal-issues/255329-cpr-18-cpr-31-a.html

We need to know EXACTLY what it says on the claim form.. what are they claiming for.

This will enable us to advise what documents you can request from the solicitor.

HTH

As Fedup stated.

Forget all the other leeches involved - SAR's to original creditor - this should throw up all the documentation held on you.

CPR reqests to the solicitors who issued the claim - because you are basically asking for copies of the documentation they are going to rely on in court.

Post documents (including the POC) up here minus the personal bits that can identify you.

sorry i started another link by mistake the date on the claim form is 21st may this morning i tried to acknowledge on line but got a little confused i ticked the box that said i defend the whole claim where it asked is this because you have payed i ticked no so now its asking for me to write a defence have i ticked a wrong box somewhere i didnt submit anything so hopefully i can go back and have another go when i get some advice from you guys

Ruthill, you need to post up the POC (Particulars of Claim) using one of the free imaging sites such as photobucket, remove identifying details first, without that peeps cannot help you prepare a defence, don't try and do this on your own.

did you send a cpr 36.14 request to hl legal for documents

if the claim was 21 may, you need to do an embarrassed defence

ill post one up

Between

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by CAPQUEST INVESTMENTS

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

3. The claimants Particulars of Claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the civil procedure rules.

4. No documents supporting the claim in the particulars have been offered nor have any dates of agreement been stated which the defendant needs to establish what agreement it is that this action is based upon and so the claimant's claim appears without merit.

5. As a result, the claim as pleaded does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. I have made a request for disclosure, pursuant to Part 31 of the civil procedure Rules, to the Claimant to allow me to properly respond to the claim. The Claimant has failed to respond to the Part 31 request.

6. It is denied that I have entered into an agreement with the Claimant CAPQUEST INVESTMENTS.

7. If, which is not admitted, such an agreement exists the precise terms and date of any such agreement are not admitted. I do not have in my possession any such agreement and am not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

8. It is averred that if any agreement did exist that the aforesaid agreement would be a regulated agreement within the terms of the Consumer Credit Act 1974 ("the Act"). It is not admitted that any alleged Agreement is enforceable within the terms of the Act. As I do not have a copy of the said agreement the Claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since its’ inception.

9. It is denied that I am in breach of the alleged agreement in that I allegedly failed to make payments to the claimant.

10. It is averred that if the alleged agreement is subject to the Act, before proceedings may be commenced the Claimant must have served myself with a valid Default Notice complying with the provisions of Sections 87 and 88 of the Act and the Regulations made subsequent to that Act. It is not admitted that any valid Default Notice was ever served upon me and the Claimant is put to strict proof.

11. It is denied that I have failed to respond to demands for payment sent by the claimant and/or its agents. The Claimant is put to strict proof that any such demands have sent to me by the claimant.

12 Further and in the alternative if, which is not admitted, an enforceable agreement is in existence, it is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sum claimed has been calculated and as to how the sum claimed is lawfully owing.

13 Further, it is denied that any alleged contractual account charges and any interest applied thereon which make up any part of the sum claimed are lawfully owing in that it is averred that these sums would have been claimed pursuant to an unfair contract term and in addition are in breach of the general law.

14 It is averred that any account charges that are claimed are in breach of the common law in that they are a penalty and that they do not reflect any actual loss or the true extent of any costs incurred by the Claimant and are therefore void.

15 Further and in any event it is averred that any clause of the alleged agreement under which the account charges are claimed is an Unfair Term contrary to The Unfair Terms in Consumer Contracts Regulations 1999 and, by virtue of Regulation 8(2), "shall not be binding on the consumer". Any such contractual terms are therefore void

16 Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimed.

17 Without admission that any cause of action is shown by the Claimant it is denied that I am indebted to the Claimant as alleged or at all.

AND the Defendant

Seeks an order that the Claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot succeed.

Alternatively if the court decides not to strike out the Claimant’s case, it is requested that the court orders full disclosure of the requested documents pursuant to the civil procedure Rules.

The Defendant respectfully asks the permission of the court to amend this defence if or when the Claimant provides full disclosure of the requested documents and allows inspection of the original documents.

Statement of Truth

I believe that the facts stated in this defence are true.

Signed

xxxxxxx

Defendant

CUT AND PASTE THIS TO DO YOUR EMBARRASSED DEFENCE OR YOU WILL GET A CCJ BY DEFAULT

DO IT NOW AS YOUR TIME HAS RUN OUT

Hi thank you for your replys what i have done is acknowledge the claim so do i now send off the sar why would i do an embaressed deffence. Also i dont know how to upload

Thanks

What Is The Date On The N1 Court Claim

What Date Did You Acknowledge The Claim

Hi the date on the claim form is 21/05/2010 i acknowledge the claim on the 7th of June i was waiting for someone to help me on what i needed to do so far thats all i have done been very unwell but relise i need to get moving with this Im afraid i dont know how to get the poc on here using phto bucket but could type it if you need it

In the NORTHAMPTON COUNTY COURT

 

 

 

 

Claim number XXXXXX

 

 

Between

 

CAPQUEST INVESTMENTS =CLAIMANT

 

 

and

 

RUTHHILL – Defendant

 

 

 

 

DEFENCE

 

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by CAPQUEST INVESTMENTS

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The claimants Particulars of Claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the civil procedure rules.

 

4. No documents supporting the claim in the particulars have been offered nor have any dates of agreement been stated which the defendant needs to establish what agreement it is that this action is based upon and so the claimant's claim appears without merit.

 

5. As a result, the claim as pleaded does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. I have made a request for disclosure, pursuant to Part 31 of the civil procedure Rules, to the Claimant to allow me to properly respond to the claim. The Claimant has failed to respond to the Part 31 request.

 

6. It is denied that I have entered into an agreement with the Claimant CAPQUEST INVESTMENTS.

 

7. If, which is not admitted, such an agreement exists the precise terms and date of any such agreement are not admitted. I do not have in my possession any such agreement and am not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

 

8. It is averred that if any agreement did exist that the aforesaid agreement would be a regulated agreement within the terms of the Consumer Credit Act 1974 ("the Act"). It is not admitted that any alleged Agreement is enforceable within the terms of the Act. As I do not have a copy of the said agreement the Claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since its’ inception.

 

9. It is denied that I am in breach of the alleged agreement in that I allegedly failed to make payments to the claimant.

 

10. It is averred that if the alleged agreement is subject to the Act, before proceedings may be commenced the Claimant must have served myself with a valid Default Notice complying with the provisions of Sections 87 and 88 of the Act and the Regulations made subsequent to that Act. It is not admitted that any valid Default Notice was ever served upon me and the Claimant is put to strict proof.

 

 

11. It is denied that I have failed to respond to demands for payment sent by the claimant and/or its agents. The Claimant is put to strict proof that any such demands have sent to me by the claimant.

 

12 Further and in the alternative if, which is not admitted, an enforceable agreement is in existence, it is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sum claimed has been calculated and as to how the sum claimed is lawfully owing.

 

13 Further, it is denied that any alleged contractual account charges and any interest applied thereon which make up any part of the sum claimed are lawfully owing in that it is averred that these sums would have been claimed pursuant to an unfair contract term and in addition are in breach of the general law.

 

14 It is averred that any account charges that are claimed are in breach of the common law in that they are a penalty and that they do not reflect any actual loss or the true extent of any costs incurred by the Claimant and are therefore void.

 

15 Further and in any event it is averred that any clause of the alleged agreement under which the account charges are claimed is an Unfair Term contrary to The Unfair Terms in Consumer Contracts Regulations 1999 and, by virtue of Regulation 8(2), "shall not be binding on the consumer". Any such contractual terms are therefore void

 

16 Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimed.

 

17 Without admission that any cause of action is shown by the Claimant it is denied that I am indebted to the Claimant as alleged or at all.

 

AND the Defendant

 

Seeks an order that the Claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot succeed.

Alternatively if the court decides not to strike out the Claimant’s case, it is requested that the court orders full disclosure of the requested documents pursuant to the civil procedure Rules.

The Defendant respectfully asks the permission of the court to amend this defence if or when the Claimant provides full disclosure of the requested documents and allows inspection of the original documents.

 

 

Statement of Truth

I believe that the facts stated in this defence are true.

 

Signed

 

xxxxxxx

Defendant

 

 

 

 

CUT AND PASTE THIS TO DO YOUR EMBARRASSED DEFENCE OR YOU WILL GET A CCJ BY DEFAULT

 

 

DO IT NOW AS YOUR TIME HAS RUN OUT

Ruthill, the reason Postggj has given you the embarassed defence is because most of these DCA's do very limited claims as it is done online and they hope that as a Litigant in Person rather than a person with legal training you will not reply in a professional manner, it will slip by you and they will get judgement by default. So the embarassed defence is pretty much a one size fits all and you are wasting time waiting on more replies here when you already have the answer.

Thankyou i have beeen poorly had a op this week this letter above which i need to send very quickly is there a template i can go to and copy it just filling in my details

THANKS

Hi Ruthhill, the following link should help with what you asked me by pm:)

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

Please Please i need to get a need to get an embarassed defence off put it wont let me copy and paste on my laptop or desktop its saying its to big any advice i really need help quick

PLEASE

Sorry Ruthhill, you are going to have to type it yourself on the lappy then.

Please Please i need to get a need to get an embarassed defence off put it wont let me copy and paste on my laptop or desktop its saying its to big any advice i really need help quick

PLEASE

It is not a good idea to 'cut and paste' everything. You have to adapt the items that are useful to you or to your own particular case. There will be sections of most items that will have nothing to do with you or your case and if you 'cut and paste' these bits you will look very foolish in court.

Of course, there will be sections that will ideally suit you so you can 'cut and paste' in smaller chunks then link the chunks together. It is very important that you understand clearly what you are copying and using. Remember you may have to stand up in court and explain why you are using the information that you have copied. If you cannot you will fall flat on your face.

You will need to spend some time reading up on similar cases to yours so you become familiar with the tactics used by claimants in circumstances close to your own and also familiar with the terminology and arguments used. As a Litigant in Person you are up against the legal 'establishment' and a claimant with, probably, unlimited resources so you need to be sure of your information.

The help given here is a guide as to what approach to take - usually excellent advice and help - but it is you who will argue your case in court.

Morning Ruthhill,

Turning to GE money, I have assumed this is a mortgage arrears case. Here is the text relating to Mortgage Arrears Protocol:

With mortgage repossessions increasing, the government is stepping in with advice to mortgage lenders. As sources of mortgage finance dry up, families can find themselves facing higher mortgage costs, as well as other budgetary pressures.

Their predicament has been exacerbated by the tough attitude of some mortgage lenders when householders ask for time to pay their arrears and offer a payment plan. In such situations, what should be the approach of the courts?

Section 36 of the Administration of Justice Act 1970 gives power to adjourn, stay, suspend, or postpone the date for possession in any instalment mortgage of a dwelling house (see Royal Bank of Scotland plc v Miller [2001] EWCA Civ 344, [2002] QB 255) if default can be made good within a reasonable period of time. A time-order regime operates for regulated agreements under the Consumer Credit Act 1974.

A reasonable period

In Cheltenham and Gloucester BS v Norgan [1996] 1 All ER 449, the Court of Appeal held that it was reasonable under section 36 to take account of the whole of the remainder of the original term of the mortgage over which to make good the borrower’s default.

After identifying the level of arrears, factors to consider include the amount the mortgagor could reasonably afford to pay, now and in the future, and the duration of any temporary financial crisis and reasons for the accumulation of arrears.

The court should also take account of the nature of the security, the length of the remaining term, the type of mortgage and relevant contractual provisions, and over what period it is reasonable to expect the mortgagee to recoup arrears of interest. After all, financial institutions make their profits out of money being out on loan. In every case, the balance between these factors differs. With little equity in the property, a shorter repayment period may be appropriate. Present financial constraints may leave little alternative to arrears payments being structured over 20 years, even if that gives no margin for future default.

Many mortgagors are blighted by their poor track record. Past non-payment history requires explanation. An imminent improvement to family finances might enable the court to make a stepped order, increasing the instalments off arrears at fixed future dates, or bring the case back for review.

Evidence

The Court of Appeal in Cheltenham and Gloucester BS v Grant (1994) 26 HLR 703 refused to lay down rigid rules for judges dealing with cases in busy housing lists. Part 32-compliant evidence is unnecessary. A borrower present at the hearing could be put on oath if required. But information about future income and expenses may be difficult to rebut.

Suppose there is equity and a planned sale will discharge the arrears. ‘Time to sell’ is often a last desperate plea of borrowers. And who should sell, lender or borrower, has been the subject of various cases. Target Home Loans v Clothier [1994] 1 All ER 439, CA suggested that if the prospects of an early sale for both parties are best served by deferring possession, then that is a solid reason for giving a short postponement (three months in that case). Although in National and Provincial BS v Lloyd [1996] 1 All ER 630, CA clear evidence of completion of the sale ‘in six or nine months, or even a year’, would be a reasonable period, this was rejected as a general proposition in Bristol and West BS v Ellis (1997) 29 HLR 282, CA. However, in current market conditions it is more logical for a longer period of time being allowed. A combination of temporary payments of current instalments and something off the arrears (achieved by the deferral of less pressing creditors), coupled with a less formulated plan to sell, offers the potential for a suspended order with review.

Citing cases

Bullish mortgage lenders cite cases such as Mortgage Service Funding plc v Steele (1996) 72 P&CR D40 as supporting the proposition that without firm evidence of completion of a particular sale, the lender should not be kept out of possession. The Practice Note (Citation of Authorities), [2001] 2 All ER 510, provides that applications for leave to appeal (such as in Steele) should not be cited ‘unless they establish a new principle or extend the law’, and the professional duty of advocates is to bring to the attention of the court all cases potentially relevant, and not merely those that are convenient or favourable. Nor should unrepresented borrowers be ‘bounced’ with inadequate extracts or case summaries. This practice invites an adjournment to a future date with a longer time estimate for a properly reasoned decision, thereby gaining the borrower what he seeks most – time.

A new protocol

The forceful approach of some lenders belies their membership of the Council of Mortgage Lenders, whose advice remains that possession should be a last resort.

This official CML line was extended in the Mortgage Arrears Protocol (see Civil Justice Council - Home), which was approved and is effective from 19 November 2008. Even prior thereto, and for existing cases, it cannot be ignored. Paragraph 4 of the Practice Direction Protocols provides that in non-approved protocol cases, the court will expect parties, in accordance with the overriding objective, to act reasonably in exchanging relevant information and generally in trying to avoid starting proceedings. A published draft protocol helps identify what is reasonable behaviour.

The protocol addresses pre-action conduct. This includes taking reasonable steps to discuss with the borrower the cause of the arrears; considering the borrower’s financial situation, including available benefits; and considering extending the term of the mortgage and a reasonable change to payment dates (so they fall after the monthly salary has come in). All these matters apply equally after issue. The protocol also provides that where borrowers can demonstrate they have taken all reasonable steps to market the property in accordance with professional advice as to price, proceedings should not be started if borrowers agree to keep lenders advised as to the sale progress. The protocol requires lenders to postpone court proceedings, so long as borrowers maintain current instalments and pay a reasonable amount regularly towards the arrears.

Advocates with uncompromising instructions from mortgage lender clients may be invited to consider their position with their client in the light of the CML advice and protocol, with the attendant adjournment. In cases of clear unreasonableness, a lender may not be allowed to add costs to the security (Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1992] 4 All ER 588, CA).

District Judge Peter Jolly sits at Portsmouth Combined Court

ruthill, you should also look at the following: see Civil Justice Council - Home

Civil Procedure Rules

What's New?

Rules & Practice Directions

Schedule 1 - RSC

Schedule 2 - CCR

Pre-Action Protocols

Glossary

Index

Forms

Court Guides

Updates & Zips

Statutory Instruments

Consultation

Contact

Search area: Search

Pre-Action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property

Contents

TitleNumber

INTRODUCTION I

Preamble 1

Aims 2

Scope 3

Definitions 4

ACTIONS PRIOR TO THE START OF A POSSESSION CLAIM II

Initial contact and provision of information 5

Postponing the start of a possession claim 6

Alternative dispute resolution 7

Complaints to the Financial Ombudsman Service 8

Compliance 9

I INTRODUCTION

1 Preamble

1.1

This Protocol describes the behaviour the court will normally expect of the parties prior to the start of a possession claim within the scope of paragraph 3.1 below.

1.2

This Protocol does not alter the parties' rights and obligations.

1.3

It is in the interests of the parties that mortgage payments or payments under home purchase plans are made promptly and that difficulties are resolved wherever possible without court proceedings. However in some cases an order for possession may be in the interest of both the lender and the borrower.

2 Aims

2.1

The aims of this Protocol are to –

(1)ensure that a lender or home purchase plan provider (in this Protocol collectively referred to as ‘the lender’) and a borrower or home purchase plan customer (in this Protocol collectively referred to as ‘the borrower’) act fairly and reasonably with each other in resolving any matter concerning mortgage or home purchase plan arrears; and

(2)encourage more pre-action contact between the lender and the borrower in an effort to seek agreement between the parties, and where this cannot be reached, to enable efficient use of the court's time and resources.

2.2

Where either party is required to communicate and provide information to the other, reasonable steps should be taken to do so in a way that is clear, fair and not misleading. If the lender is aware that the borrower may have difficulties in reading or understanding the information provided, the lender should take reasonable steps to ensure that information is communicated in a way that the borrower can understand.

3 Scope

3.1

This Protocol applies to arrears on –

(1)first charge residential mortgages and home purchase plans regulated by the Financial Services Authority under the Financial Services and Markets Act 2000;

(2)second charge mortgages over residential property and other secured loans regulated under the Consumer Credit Act 1974 on residential property; and

(3)unregulated residential mortgages.

3.2

Where a potential claim includes a money claim and a claim for possession this protocol applies to both.

4 Definitions

4.1

In this Protocol –

(1)‘possession claim’ means a claim for the recovery of possession of property under Part 55 of the Civil Procedure Rules 1998 (“CPR”);

(2)‘home purchase plan’ means a method of purchasing a property by way of a sale and lease arrangement that does not require the payment of interest;

(3)‘bank holiday’ means a bank holiday under the Banking and Financial Dealings Act 1971; and

(4)‘business day’ means any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas day; and

(5)‘Mortgage Rescue Scheme’ means the shared equity and mortgage to rent scheme established either –

(a)by the UK Government to help certain categories of vulnerable borrowers avoid repossession of their property in England, announced in September 2008 and opened in January 2009; or

(b)by the Welsh Assembly Government to help certain categories of vulnerable borrowers avoid repossession of their property in Wales, first announced in June 2008.

II ACTIONS PRIOR TO THE START OF A POSSESSION CLAIM

5 Initial contact and provision of information

5.1

Where the borrower falls into arrears the lender should provide the borrower with –

(1)where appropriate, the required regulatory information sheet or the National Homelessness Advice Service booklet on mortgage arrears; and

(2)information concerning the amount of arrears which should include –

(a)the total amount of the arrears;

(b)the total outstanding of the mortgage or the home purchase plan; and

©whether interest or charges will be added, and if so and where appropriate, details or an estimate of the interest or charges that may be payable.

5.2

The parties should take all reasonable steps to discuss with each other, or their representatives, the cause of the arrears, the borrower's financial circumstances and proposals for repayment of the arrears (see 7.1). For example, parties should consider whether the causes of the arrears are temporary or long term and whether the borrower may be able to pay the arrears in a reasonable time.

5.3

The lender should advise the borrower to make early contact with the housing department of the borrower's Local Authority and, should, where necessary, refer the borrower to appropriate sources of independent debt advice.

5.4

The lender should consider a reasonable request from the borrower to change the date of regular payment (within the same payment period) or the method by which payment is made. The lender should either agree to such a request or, where it refuses such a request, it should, within a reasonable period of time, give the borrower a written explanation of its reasons for the refusal.

5.5

The lender should respond promptly to any proposal for payment made by the borrower. If the lender does not agree to such a proposal it should give reasons in writing to the borrower within 10 business days of the proposal.

5.6

If the lender submits a proposal for payment, the borrower should be given a reasonable period of time in which to consider such proposals. The lender should set out the proposal in sufficient detail to enable the borrower to understand the implications of the proposal.

5.7

If the borrower fails to comply with an agreement, the lender should warn the borrower, by giving the borrower 15 business days notice in writing, of its intention to start a possession claim unless the borrower remedies the breach in the agreement.

6 Postponing the start of a possession claim

6.1

A lender should consider not starting a possession claim for mortgage arrears where the borrower can demonstrate to the lender that the borrower has –

(1)submitted a claim to –

(a)the Department for Works and Pensions (DWP) for Support for Mortgage Interest (SMI); or

(b)an insurer under a mortgage payment protection policy; or

©a participating local authority for support under a Mortgage Rescue Scheme,

and has provided all the evidence required to process a claim;

(2)a reasonable expectation of eligibility for payment from the DWP or from the insurer or support from the local authority; and

(3)an ability to pay a mortgage instalment not covered by a claim to the DWP or the insurer in relation to a claim under paragraph 6.1(1)(a) or (b).

6.2

If a borrower can demonstrate that reasonable steps have been or will be taken to market the property at an appropriate price in accordance with reasonable professional advice, the lender should consider postponing starting a possession claim. The borrower must continue to take all reasonable steps actively to market the property where the lender has agreed to postpone starting a possession claim.

6.3

Where the lender has agreed to postpone starting a possession claim the borrower should provide the lender with a copy of the particulars of sale, the Home Information Pack and (where relevant) details of purchase offers received within a reasonable period of time specified by the lender. The borrower should give the lender details of the estate agent and the conveyancer instructed to deal with the sale. The borrower should also authorise the estate agent and the conveyancer to communicate with the lender about the progress of the sale and the borrower's conduct during the process.

6.4

Where the lender decides not to postpone the start of a possession claim it should inform the borrower of the reasons for this decision at least 5 business days before starting proceedings.

7 Alternative dispute resolution

7.1

The court takes the view that starting a possession claim is usually a last resort and that such a claim should not normally be started when a settlement is still actively being explored. Discussion between the parties may include options such as:

(1)extending the term of the mortgage;

(2)changing the type of a mortgage;

(3)deferring payment of interest due under the mortgage; or

(4)capitalising the arrears.

I am sorry this is lengthy, I have been away over the w/end. - but it is all important and I am sure if you check carefully GE will not have complied with anything !

I am at home today so please feel free to pm me if you think I can help....

ps: GE will send a nominated local solicitor to act for them at any hearing, and usually they are poorly prepared themselves - so you will have an 'edge' no matter what..

Best wishes

Dougal

gOOD MORNING I HAVE RECEIVED A LEYYER THIS MORNING FROM HL LEGAL SAYING SAYING WE ENCLOSE A COPY OF A LETTER THAT WE HAVE SENT TO NCC TODAY FOR YOU INFORMATION THE LETTER READS WE SHOULD BE GRATEFUL IF YOU WOULD PLEASE NOTE THAT THE CLAIMANT WISHES TO PROCEED WITHITS CLAIM PLEAS CAN YOU THEREFORE ARRANGE FOR THE MATTER TO BE REFERRED TO 888888 COUNTY COURT I HAVE ALSO RECEIVED ANOTICE OF TRANSFER PROCEEDINGS AND AN ALLOCATION QUESTIONNAIRE WHAT DO I DO NOW HELP

I am totally lost with this new site i posted back along about papers i received froM HL legal on behalf of capquest i sent back an embarrssed defence i have now had paper notice of transfer of proceedings to the county court what do i do now please help

Your original thread is here