HSBC Repossession

[jssandy01]

Hi

 

Have received help previously from other forums and now need help here if possible. Fantastic site and do not know what we would have done without support.

 

I will not go into war and peace but we have a number of debts we are trying to resolve with HSBC one is our mortgage arrears and the others are 2 unsecured loans all much smaller. The mortgage arrears were around £16k in 2007 and HSBC obtained a possession order. We did agree at that time (Nov.07) to try and re-mortgage to repay the arrears and other debt and signed a Tomlin order in good faith to achieve this. Due to new climate that has not been possible and we wrote to DG Solicitors in December 2007 to advise of this. DG solicitors were handling the case but the person we were dealing with left the firm suddenly in January.

 

We have written to DG several times since then to try and agree a revised payment proposal. They have never replied apart from chasing the Tomlin order in May with no reference to any of our correspondence. All our letters to DG were sent by special delivery and up until last month we enclosed our regular mortgage payment plus an areears payment of £500 all of which have been cashed. Since February we have been subsequently been paying our full mortgage plus £500 per month towards arrears with September being paid this week ,that will make 9 full payments.

 

Today we received a letter from DG stating they have received instructions to enforce the possession order due to the failure to make the payments of the original order.It then goes on to say that the property needs to be vacated.

 

Please advise what steps we need to take. They have not again mentioned our correspondence , the payments we have made etc. A bit worried to say the least!!

[surfaceagentx20]

A few questions before I can help:

 

How many orders have there been? Is the Tomlin Order the same as the Possession Order?

 

Would I be right in thinking that the Schedule to the Tomlin contained provision for the mortgage debt to be discharged by a certain date which has now passed us by?

 

If the possession order is incorporated as part of the Tomlin order, please let me know about the precise terms on which possession was ordered. Was it scheduled to the order or in the body of it?

 

Were there any other provisions in the order? Any provisions for suspension for example or provision for liberty to apply?

 

x20

[jssandy01]

Many thanks for quick response.

 

1. The Tomlin order was registered with the Court Nov. 07 after possession order granted in Aug. 07.The two were separate events although linked.

2. Yes the date has passed which was December 07 and some payments have been made against some of the other unsecured debt. But as detailed we did contact them to let them know of change of circumstances in Dec 07.

3. I do not have the order with me as my files are elsewhere, but belive it was in the body of the order.

4. There were no provisions as I can recall.

 

DG seem to be just focused on the repossession but as we have demonstrated that we can pay the mortgage plus amount towards arrears will that not have a bearing?

 

Hope this is clear and appreciate support. We are terrified we will lose our home after getting almost back on our feet and re-starting payments etc.

[Ell-enn]

Hi there, as you are in NE Scotland I will contact one of the other team members who should be able to advise you further.

 

Ell-enn

[jssandy01]

Ellen.

 

I am not in scotland I am in Northampton need to change profile.. sorry forgot about it.

[Ell-enn]

OK, in the first instance I would advise you to write again to DB solicitors (copy HSBC) detailing your offer of payments towards the arrears each month in addition to the normal monthly payment and list the increased payments you have made over the last 9 months. You should also affix a budget sheet (income and expenditure statement) to show you can maintain these payments. You can download one here: National Debtline England & Wales | Personal Budget Sheet

 

If they do enforce the warrant for possession eviction) you an apply to the court on a N244 form (I can help you with that) to have a hearing to change the order to a suspended possession order dependent on increased installments. The above letter would prove to the court that you have tried to come to an arrangement. You would also show the court the letters you have sent and payments you have made which have received no response.

 

If you have a regular income and can prove you are able to maintain increased payments going forward there should be no problem getting the order suspended.

 

Kind Regards

 

Ell-enn

[jssandy01]

Ellen

 

Many thanks for re-assurance. Would it be worth applying for the possession order to be suspended anyhow or is it better to react to whatever they do first?

[Ell-enn]

I think it's best to send the letter first, and then if they still enforce possession we can submit an N244.

 

Ell-enn

[jssandy01]

Thanks Ellen

 

I have drafted letter today and will post special delivery. I called the solicitors office and he is on leave until Friday so not sure if they have instructed court to do anything as yet.

[jssandy01]

Hi

 

I drafted and posted the letter asking for consideration to be given to our proposal but no reply.

 

I have now had an eviction date help!! date is 25th Sept. I have spoken to the court and they can get me a hearing with a judge on wednesday provided i get papers to them monday.

 

Thanks

[jssandy01]

Hi

 

I need help with the n244 which has to be in with the court on MONDAY. I am travelling all day tomorrow from Scotland to Northampton and need to file papers Monday at Wellingborough court so we can have the hearing on wednesday.I will not have access to internet 10am - 11pm tomorrow.

 

As explained we have an eviction date and we we very very scared we will loose our home. DG solicitors have ignored all attempts to agree a settlement and we have written to them every month since January by recorded delivery enclosing payments and offering settlement, and not once have they had the courtesy to reply!

 

As mentioned previously we agreed to a Tomlin order as we were going to re-mortgage and pay off HSBC .The Tomlin order was filed November 07 after the repossession order was granted in August 07. Due to credit crunch we have not been able to get a mortgage and contacted DG in December 07 to let them know that and offer an alternative arrangement. The deadline for the Tomlin order was 15th December. From then t'ill now we have paid mortgage in full plus £500 towards arrears.

 

We are blessed to be in full time work and can afford to pay this ongoing.

 

DG state they are going after repossession on the back of the order granted in August 07.

[surfaceagentx20]

Hi,

 

I filled out an N244 with the intention of posting the form up here as a pdf but for some reason I'm having difficulty.

 

In case I fail miserably, set out below are the essential for the N244. I am sure you will be able to complete the other parts. Go for [1] a hearing before [2] A District Judge with a [3] time estimate of 10 minutes with [4] the application notice being delivered to the Claimant.

 

In Box 3 say:

 

That execution of the warrant of possession issued by the Claimant in this case be stayed or suspended, or that the date for delivery of possession be postponed for such period or periods as the court thinks reasonable, on the grounds that the Defendant is likely to be able within a reasonable period to pay any unpaid sum due under the suspended possession order and maintain payments to the Claimant in accordnce therewith.

 

In Box 10 (after ticking 'the evidence set out in the statement below' say:

 

In November 2007 the Defendant was in arrear of mortgage instalments in the sum of £16,000.00 or thereabouts. In December 2007, the Defendant agreed to use best endeavours to re-mortgage the property in order to discharge the amount owing to the Claimant. Owing to the current financial climate, despite best endeavours it has proven impossible to find a willing lender.

 

In the circumstances the Defendant is and has during the 9 months pre-dating this application, faithfully maintained payments to the Claimant of [1] the monthly mortgage instalment of £xxxx.xx and [2] £500.00 in reduction of the instalment arrears. There is no good reason to suppose the Defendant will be unable to maintain such payment into the future. By reason of the foregoing, maintaining payments in reduction of the arrears at a rate of £500.00 per month has reduced the arrears by £4,500.00 leaving £11,500.00 or thereabouts left to pay, which at the curent rate will have been met in full by in or about July 2010.

 

The court is requested to exercise its power under Administation of Justice Act 1970 section 36 and stay the warrant on such terms as to the court shall appear just and fair.

 

Any questions just yell loud.

 

x20

Edited September 14, 2008 by surfaceagentx20

[jssandy01]

Many thanks for replying.

 

We are very worried about all of this. Logic says that we have made every effort to sort this out and we have been treated very unfairly by DG. Having read some stories we are still worried that we may get an un-symathetic judge.

 

Anyhow we will give it our best shot. Thanks X20 for putting our mind at rest and replying was getting a bit jittery.

 

When I phoned the court on Friday they said if we get papers in Monday we will get to see a judge Wednesday. They have repossession hearings once a week so if all goes badly we still have some time.

 

I will put papers together tomorrow night once we have arrived in northampton ready to take to court Monday Morning.

 

Fingers crossed.

 

If anyone has any tips on how to behave in front of a judge let me know!

[Pathway]

Try and be calm - and have all your facts and figures to hand - and just explain your case.

 

Repossession is supposed to be the very very last resort - and the Financial Ombudsman has issued guidelines to lenders.

 

It seems DG Solicitors (an in house collections dept of HSBC) seem to be ignoring the current guidelines.

 

Good luck:)

[jssandy01]

Have just arrived in Northampton 12.15am after 11 hour drive from NE scotland Whew!!

 

I will be sorting paperwork to take to court early in the morning. I have just noticed, however, that the eviction notice is only addressed to my husband ? I am not mentioned although the house is in joint names and so is the mortgage? Is this a technical issue i can also add to my armoury? Thanks if anyone can help with this.

[surfaceagentx20]

Are you named in the judgment? If so, the omission of your name may be used to a point but I wouldn't expect anything to turn on it. What you have is a notice reporting the issue of a warrant. What's on the warrant will be the important part. If you are not on the warrant but on the judgment, all that the Claimant will need to do is amend it.

 

If you are not named in the judgment, sit tight. It's your house and you have not been ordered out of it.

 

x20

[jssandy01]

Hi

 

yes we were both named in the judgement.

 

Have file papers at court today. Hearing is 2pm wednesday. I added a paragraph stating we have been communicating with DG since January to settle but have had no reply! Had to put that one in.

 

Fingers and toes crossed for wednesday!!

 

Thanks for help so far!

[jssandy01]

Help!!!!

 

I have received copy witness statement from DG solicitors for the hearing tomorrow.

 

In a nutshell they are saying that beacuase we have a Tomlin Order the mortgage no longer exists and the Tomlin Order governs the liability. This means that they have a right to repossession and that our application should be refused.

 

 

Anyone out there with some legal assistance!!!

 

getting very very worried!!!

[OLIVE.FAMILY]

Please try not to wory. Ell-en is usually around at lunch time. She will be able to advise.

 

I am sure that they cannot just take your house without you being allowed to defend yourself. That is what the court is there for.

 

I know it is very stressful but please try to stay calm for a little longer.

 

Goodluck for tommorow

 

olives xx

[surfaceagentx20]

So on the one hand DG claim a right to issue a warrant for possession in mortgage possession proceedings yet on the other contend in opposition to an application for a suspension of that warrant, that there isn't a mortgage! I suppose they are saying their client's loan is unsecured as well.Has the mortgage been cancelled at The Land Registry?

 

You are going to have to spell out every word in the Tomlin and the witness statement. I hope you can do that.

 

What I'd like to be able to do is choke DG by showing the agreement set out in the Tomlin terminates the mortgage (if that's what it does) and therefore the possession proceedings, such that any subsequent claim that there has been a breach of the agreement set out in the Tomlin must be enforced by fresh proceedings.

 

I can't say this for sure without seeing the Tomlin and the way DG advance their case in the witness statement. Please produce them both as soon as possible.

 

x20

[tinkerbell20]

If it terminates the mortgage would that change be reflected at the Land registry? The OP can check that online for I think £4

[jssandy01]

x 20 can I fax to you I have Tomlin order here?

[jssandy01]

X20

 

The other facts are that the remainder of the Tomlin order Debt has been partially settled by agreement so why can we not make an agreement on this? Also we wrote to them in December to advise we could not meet the terms then and have been trying to get an agreement but they have not once replied to any of our letters all sent special delivery with payments all of which have been cashed.

[surfaceagentx20]

x 20 can I fax to you I have Tomlin order here?

 

Sorry, I can't accept by fax, only by email.

 

Quick question: Does the name of a Judge appear on the consent order?

 

x20

[surfaceagentx20]

jssandy,

 

please post up the order and statement (or esential parts of the statement) as quick as you can. Please also say if the Judge's name appears on the conent order on November 2007.

 

x20