I urgently need help to stop a Scottish repo

[ewang1]

Accord have stated that they will repossess on 2nd Dec, I havent attended court, but they have and this is the date set, I have made this months payment plus a bit extra towards the arrears and have committed to this going forward, I will this week make my second payment of the monthly mortgage payment and an amount towards the arrears, but they have insisted on a lump sum of £2800 in addition to my payment which I just dont have and cant get without the help of a loan shark, understandably I dont want to go down this route, how else can I keep my home though????

[OLIVE.FAMILY]

I am not sure if Scotland is the same as this country but I am sure somebody will be able to advise soon. Please do not go to a loan shark that will be making the situation so much worse. I am sure where ever you are you can apply to get the repo set aside by applying to court for a hearing.

 

If you have a hearing then the judge will consider a monthly payment towards the arrears. As long as it is a reasonable amount that you can afford.

 

olives xx

[rory32]

Has a hearing already taken place?

 

What have you been served with?

 

There are 3 main routes that a creditor can take in Scotland. These are:

 

1) Service of a Calling-up Notice giving 2 months to clear arrears; if arrears are not cleared thecreditor can proceed to sell the property without the need for the court’s permission. If the debtor does not agree to vacate voluntarily, an ordinary action for repossession under section 24 of the Conveyancing and Feudal Reform (Scotland) Act 1970 can be raised to evict the homeowner and family.

 

(2) Service of a Default Notice giving one months notice; followed by an ordinary action for repossession and the power to sell under section 24 of the Conveyancing and Feudal Reform (Scotland) Act 1970.

 

(3) By proceeding on the debtor's default of standard condition 9(1)(b) of the standard security (the 'mortgage') (which reads as follows: 'where there has been a failure to comply with any other requirement arising out of the security). In other words where the debtor has missed mortgage payments. The lender's solicitors can lodge a certificate with the court proceedings raised (typically, by way of initial writ in terms of section 24, of the1970 Act) in terms of section 24(2) of the 1970 Act. The certificate provides prima facie proof of arrears (which could be rebutted if there was evidence to the contrary).

 

Which one of these routes is your creditor going down?

[rory32]

Is the property used for residential purposes and occupied by you as a sole or main residence?

[ewang1]

Hi Rory,

 

The hearing has already taken place, although I didnt attend, partly through fear and also as I didn't believe I would have any right to state my case, having read some of the posts on here, pure stupidity I know,

 

The property is purely residential and is my only home, I dont have family in the area either as a back up when I am evicted, my partner also lives with me and has since I bought the property, the mortgage is solely in my name however, the arrears resulted through my being made redundant, I have now returned to work, albeit on a lower salary, I have however made last months and this months mortgage payments plus a bit extra towards the arrears both months, this isnt enough they tell me however.

 

The lender has gone down the 3rd route in terms of the repossession.

 

I really appreciate your time in helping with this nightmare.

[rory32]

Okay. That's the normal route for a repossession these days. Do you know the outcome of the hearing?

 

Even at this late stage it may be possible for the enforcement order to be supsended under the Mortgage Rights (Scotland) Act 2001. You really need to consult a solicitor regarding this and make an application for the enforcement order to be supsended.

 

Where proceedings have been raised under section 24 of the Conveyancing and Fedual Reform (Scotland) Act 1970 (remedies on default), an application must be made before the conclusion of the proceedings.

 

 

The term, conclusion of the proceedings is not defined within the Act, however, in civil court procedure this is taken to mean when the action has been disposed by way of final decree. A final decree is only obtained once the court has determined the question of legal expenses at the end of the case – which can be at the same time decree is granted, or after decree is granted.

 

So you really need to make an application through a solicitor as a matter of urgency.

 

Where an applicant fails to lodge an application in time, and is subject to decree, it is possible to apply to the court for recall of the decree on one occasion (by way of a 'Reponing Note' in terms of Ordinary Cause Rule 8.1(3). There is case authority supporting this position: GMAC-RFA Ltd v. Murray and Murray (Case Ref A216/2002H) , Sheriff Principal Bowen Q.C, 9 October 2002, Glasgow - reported in Issue 4 Hous LR, October 2003).

[ewang1]

You're being a great help, thanks,

 

The latest letter I got on Saturday states that they are in possession of an extract decree, I take it this means that I need to get a solicitor to try and get a reopening?

 

From your experience, how likely is it that I can get a reopening and then have the enforcement order suspended?

[rory32]

I take it this means that I need to get a solicitor to try and get a reopening?

Yes.

 

From your experience, how likely is it that I can get a reopening and then have the enforcement order suspended?

It depends on the individual case.

 

The sheriff has no wish to allow your property to be repossessed and will look at a number of factors such as how long it will take to pay the arrears e.g. can it be done within a reasonable period, the nature and reasons for the default, any action taken by the creditor to assist the debtor to fulfill their obligations and the ability of the applicant and any other person residing at the house to secure reasonable alternative accommodation.

[ewang1]

I've seen a solicitor today and all seemed very positive, she is contacting the court this afternoon to try and arrange a reponing which will immediately halt and further eviction until the court can hear the case, some breathing space it would seem for now, until the the next battle starts, thanks for the help and guidance so far, very much appreciated