Firstplus repossession hearing 15th December - advice/help please.

[pubman1]

I am just sorting out the statement and I am wondering whether to put in the fact that FP have not considered the Pre action protocols. Their witness statement sent to me by their solicitors says that they have compiled with the protocal but I have written to them expressing my concerns that they have not twice this year and they have not replied. Thay have previously let us make reduced payments for 3 months but that was before the protocols came into effect. Since November 2008 they have ignored all letters I have sent.

[jansus]

I would - as the protocol was issued by the Ministry of Justice I would say it is relevant.

[pubman1]

Ok, statement is done along with 4 appendicies which are - 1. Income and expenditure statement which includes the FP loan and shows us about £250 per month over committed ie £250 more going out than coming in if we were paying the FP loan. 2. Letters from the FOS showing that they are dealing with our PPI claim. 3. Letter to First plus asking them to consider other options eg capitalising the arrears or moving to interest only (never had a reply to this) and 4. Letters to their solicitors asking them to consider the Pre Action Protocols before taking action and to suspend possession action until the FOS complete dealing with my complaint. (No reply to those either). I will drop off a copy of the file on Monday and then take 3 copies of it all on Tuesday. It's all we can do so I hope it works out.

[pubman1]

Have been looking through some other threads and have come across some inforamtion regarding a case between Blemien Finance and Bentley. I think that our loan may well be considered similar to that case. Should I bring this up now, or just use this hearing to get the possession adjourned?

[pubman1]

Court tomorrow. I am happy with the statement and evidence that I have. A couple of probably silly questions - how should I address the judge - sir, madam etc? Do they expect me to be in a suit? And what do you all think that the outcome may be? As far as I can tell this can go one of three ways - 1. Hearing adjourned pending the FOS outcome of the PPI complaint. 2. Judge gives directions for trial - I understand this would mean coming back in January regardless of the FOS complaint. Correct me if I'm wrong. 3. Judge gives the claimant possesion and an eviction date. Could we appeal this given my thoughts abount Blemain v Bentley?

[Ell-enn]

Hi there, you just need to be smart - wear something you're comfortable in.

 

You should address the judge as Sir or Madam - don't interrupt them when they are speaking, they don't like that. As it's the lender's application for a hearing the judge will speak to them first and then address you. Speak slowly and clearly - the judge will know you are nervous and they are usually very good at guiding you through the process.

 

Did you take your statement to the court today?

 

Ell

[pubman1]

Hi Ellenn,

Yes I took statement in and the lady that I gave it to said that the file would go to the judge this afternoon and then they would look at it tomorrow before the hearing. What are your thoughts on my other questions?

 

Thanks for your help and support.

 

 

Pubman1.

[pubman1]

Just having a little bit of a panic! Based on all of the above what are my chances of getting the hearing adjourned until next month? I think I have a good argument but a bit nervous as 3pm approaches.

[on*the*case]

It will be fine

[midge61]

Hope all goes well

[jansus]

Just checking in to see how you got on. Hope you are ok

[TimeToStandUp]

Likewise hope it went well...

[pubman1]

So.......

 

I got to the court early and saw the duty solicitor. I told her my story and she checked the Pre Action protocol, section 8 which states that the claimant should not start proceedings if there is a complaint with the FOS, and if they did start proceedings they had to write to the defendant more than 5 days in advance of the hearing with their reasons as to why they were proceeding. Needless to say, they had not written. Then it got a bit more interesting. The duty solicitor went off to find their solicitor. They said that there was no complaint and it had been resolved by the claimant! They had also not brought form N123 with them (2 copies required) which is a checklist of the protocol to make sure that they have considered it. Their solicitor madee a hasty phone call to her office and they e-mailed her N123. And in the section where it asks if there is an outstanding complaint with the FOS they put...........NO!

The judge took a dim view of their dithering, and asked why they did not seem to know that there was an ongoing complaint when there clearly was. They even said that there was no complaint! To which the judge responded that if there was no complaint then how come there are two letters from the FOS in the appendicies of my statement. Was he to think that they were fraudulent!! To confound things further I pointed out that I had written to them on 23 October pointing out that there was an ongoing case with the FOS including the complaint number and that they had replied saying that they had passed my letter to their client (FP). So why did they not know about the case. Their solicitor suggested that perhaps the letter had been delayed by the postal strike!! I did not have their reply with me, but the judge has requested I bring it to the next hearing. Which brings us to the end - case adjourned for 6 weeks pending the result of the FOS complaint. The judge said that I had a strong case for the mis-selling of the PPI based on just one of my argumemts so here's hoping. The judge also said that pending my production of the reply from their solicitors which will prove that they knew that there was a complaint with the FOS the legal costs of today's hearing would not be added to the account and that they would also have to pay my costs for today!

 

All in all - RESULT:D:D:D:D and to them.

[on*the*case]

So.......

........- case adjourned for 6 weeks pending the result of the FOS complaint. The judge said that I had a strong case for the mis-selling of the PPI based on just one of my argumemts so here's hoping. The judge also said that pending my production of the reply from their solicitors which will prove that they knew that there was a complaint with the FOS the legal costs of today's hearing would not be added to the account and that they would also have to pay my costs for today! ...

 

Delighted for you. Well Done.

Judges dont like being mucked about do they !

 

The Judge at my hearing also made a no costs order, the solicitors applied for a variation regarding the costs, the Judge dismissed them with a flea in their ears.

[pubman1]

Forgot to add - their solicitor asked for leave to appeal and for a suspended possession ordering us to make the contractual monthly payments. The judge put a tape in the machine, asked her to repeat and then in about 20 seconds told her that since we probably should not have been there at all he was not granting leave to appeal. Made my day!!

[Ell-enn]

That's brilliant ! what a great judge and well done to you for being so brave.

 

Hope you can relax a bit now and enjoy Xmas

 

Ellx

[michellej]

well done , great result,... can the FOS looking ito , or listen to complaint regarding arrears dispute ?????

Edited December 16, 2009 by michellej

[jansus]

Well done - really glad that your case seems to be moving in the right direction.

 

Heres hoping the FOS do the right thing and speed your case up.

 

Hope you can relax a bit now.

[pubman1]

Just back from Christmas with relatives. Hope you all had a good Christmas and a happy new year. New court date arrived this morning - 28th January so the FOS have 4 weeks to get the complaint sorted. Even if they don't I don't think the judge would allow FP to repossess as they are in clear breach of paragraph 8 of the pre action protocol. Let's hope they get the complaint sorted before then though.

[Ell-enn]

Hi there, hope you had a nice Xmas. Keep us posted on the situation and we will get a statement together for the hearing.

 

Ellx

[pubman1]

Hi,

 

Sorry for the lack of updates recently. So, was back in court yesterday. Due to our financial situation the duty solicitor who was there for the first hearing is now representing us free of charge so that's a relief. The FOS had sent a letter to say that while our complaint has been prioritised they are not in a position to pass it to an adjudicator due the volume of complaints of this type they currently have. I took copies of this letter along with evidence that FP and their solicitors knew about the FOS complaint prior to issuing the possession claim. I was hoping that the judge may just dismiss the case but instead it was adjouned for a further 6 weeks to alllow more time for the FOS to decide on the complaint. That in itself was great but then the FP solicitor suggested that as part of the order we should pay an amount each month equal to what the monthly payments would be if the complaint is successful - £650 per month. I understand that, and the judge included it in his order. However when the judge was told that the normal payment date is the 1st of the month he ordered that the first payment should be on the 1st February - 3 days time!! We argued that this would present difficulties as it was so soon, and the judge dismissed this by saying that "these difficulties will have to be overcome"

We do not have £650 kicking around and if we send this through over the course of Feb as and when we have money coming in then we would not be able to make the payment on 1st March. If we don't pay during February we could probably manage to scrape together the March payment and then would be back in court mid-March in any case.

 

What options do you think we have? And if we pay nothing until 1 March what is likely to happen at the next hearing if the FOS have still not ruled on the complaint given that FP are in breach of the protocol?

 

Thanks,

 

Pubman1

[pubman1]

Hi,

 

Just bumping up...

[jansus]

Do you know how they came to the MP of £650? Do you agree that if the complaint was upheld then that is what you would have to pay?

 

I guess they will have to recalculate the whole loan and interest charged?

 

Did you at any time get a budget sheet looked at by the court to show what you could afford?

 

My main comment would be to pay whatever you can afford as soon as you can even if it is several payments over the month as I guess the court want some proof that if the PPI is sorted you will be able to continue paying the mortgage.

[pubman1]

Hi,

 

I have now managed to accumulate £650 and could make the payment. However I am reluctant to do so. If the FOS rule in my favour, the PPI and interest would be removed form the loan and FP would probably have to refund me the balance. If the FOS rule for FP then it's effectively game up and in that case the £650 that I have now would be extremely useful to have in the bank as a start to finding deposit for a rental place. Next court date is 12 March. Perhaps I should hold onto the money until just before that to see if FOS can rule before the court hearing??

But if I do that and the FOS have not made a decision what will the court make of it?? Will they adjourn again as FP will still be in breach of the protocal?? Or will they grant possession while the FOS are still investigating?? That would surely break the protocol though??

Edited February 26, 2010 by pubman1
spelling

[Ell-enn]

If you haven't kept to the court order then I don't think the judge is going to look favourably on your case. You were ordered to pay £650 on 1st Feb - you still haven't paid over a month later - and you get the same judge who said these difficulties had to be overcome it doesn't bode well