2005 NR SPO - payments missed now Bailiffs Possession warrant - **WON NEW SPO**

[newstarter]

Nice one well mrz its job done, good work and yes it is relevent so you did well to add.

[MrZ]

Thank you. I do have positive feelings about things. I'll be glad when its all behind me.

 

I have a hearing scheduled for the 30th November. The hearing is my application as a borrower to stay the execution of a Bailiffs Possession warrant.

 

In my defence I have referenced the fact that the lender, Northern Rock, violated both the Civil Rules Procedure 55A Section IV 10.3, by not providing any notice to me, as well as Pre-action Protocol for Possession Claims Based on Mortgage Arrears in Respect of Residential Properties s3.4 by taking action whilst I was in discussions regarding repayment of the arrears, and again providing me with no notice of their intention to enforce.

 

I would like to ask the court to find, that in fact there was non-compliance in both instances, and further request that NR pay all the fees incurred as a result of filing my defence. So my question is, does anyone know of any established case law that can be cited to support my argument?

 

Any information, as always, is greatly appreciated.

 

I have another question. I have received 2 letters from Optima regarding the scheduled posession. The letters state

 

"If you have made any payments toward clearing the arrears, you must contact use immediately, failure to do so may mean the eviction will proceed"

 

My question is this, does making payments toward the arrears (which NR have accepted) invalidate their claim? Is this Optima Legal covering their backsides by saying they told me, without out them explicitly saying that I have other rights? In other words are they trying to be sneaky by not disclosing information that I can use to stop proceedings?

 

What would be the benefit of me notifying them that payments have been made and accepted? What are the consequences of not notifying them?

[Ell-enn]

I think Optima legal don't know their ar$e from their elbow quite frankly - another case of lenders and solicitors failure to communicate effectively. They have given you no indication that the eviction will not proceed so you should carry on with attending the hearing. You can always take an up to date statement to the court to show the judge the confusing and unhelpful communication you received from them.

 

Incidentally, the Pre Action Protocols refer to the lenders considering the arrears situation beforeissuing a claim for possession and are not relevant after a suspended possession is granted via court. However, lenders are required to enforce eviction only as a last resort! (last resort means there is no ability to pay). If there has been an offer to pay the arrears or there are ongoing negotiations between the lender and the debtor, then the court will not agree that eviction is a last resort and will suspend eviction based on your ability to pay.

[MrZ]

Hi Ell-enn,

Thanks for that information. Its good to know how I can apply it specificaly to my case. I do have a further question.

 

This is a link to the Minirty of Justice practice Directions:

 

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part55a.htm#IDAQLPVB

 

Specifically sections 10.1, 10.2, and 10.3. The way I read this, it seems to apply to my case of a suspended possession order. Am I correct in my reading? If so, do you have any advice as to how I can apply this to my case, based on the fact that there was absolutely no notice whatsoever given? I have a letter showing that Optima Legal proceeded with the application for possesion. The letter makes no mention of previous correspondence. A

 

lso I have a letter of the same date from NR saying they are proceeding, and again, no mention of previous correspondence. I have made an SAR request, but wont have time before the hearing to receive it. Subsequently I have received a letter today from Optima which does mention previous correspondence. Meaning their original letter saying they had applied for possession. Otherwise how does one go about providing evidence that no notice was given?

[Ell-enn]

Ah, that is taken from Practice Directions for rented properties

not the Civil Justice Council Mortgage Arrears Pre-action Protocols.

[MrZ]

I now see the error in my ways. There doesnt seem to be a relevant clause in the Mortgage pre-action protocol relating to suspended orders, or orders of a certain age. Thats a shame. I dont expect to have to rely on it, but it would have been nice to have all the ammunition to use in defence.

[Ell-enn]

You should quote the fact that they have not enforced eviction as a last resort - you have made offers to pay - shown them proof of your income and tried to come to an arrangement - they will need a good explanation for why they have refused your offers.

 

Have you made recent payments to the account?

[MrZ]

I made a regular payment, and an additional payment toward the arrears, the day after I received notice of them enforcing. Not because I got the notice, but because it was the regular payment date.

 

I will be making another payment tomorrow, which is the regular schedule date, and I will again be making a payment toward the arrears.

 

BTW in my defence I have given the dates of the last 6 regular payments. May to November all full payments plus additional to arrears. I missed Augusts payment, which is what triggered their enforcement action.

 

But again. They gave me not notice that this was their intention, and in fact only days before i got their notice I discussed increasing my additional monthly payments as a result of the missed August payment.

[newstarter]

Hi mr z ,just been looking through the last couple of posts,and yes your right to go to court with as much in your defence as possible,from the outset nr have seemed determined to get this to court,i dont think any amount of reasoning would have helped your cause here,for one thing every time you ring these people up you get a different person and you have to explain things over and over again,then from each person you get a different story,then you ring up the reps and they tell you something completley different,so you ring the lender back then you get " oh i dont know anything about that " you get to stage where there is just no reasoning with either the lender or the solicitors,you really couldnt make it up,thats why going to court is often the best option because once the judge has made a ruling everyone knows where they stand so you cant be messed around anymore,you know what you have got to pay,and the lender knows what to expect each month and thats the end of it,upshot of it all is no more threatograms from nr

[MrZ]

You're absolutely right. I rang today to make my regular payment plus additional toward arrears. They had no problem taking my payment. I asked why I still hadnt received any confirmation of acceptance or refusal of my offer. The guy said " Oh yes, mandate have said they want a lump sum." To which I replied, can you send that to me in writing along with an explanation as to why my offer is unacceptable, as I have requested? He replies, "oh well you have been told this over the phone". I then say I want it in writing. Finally he says, "well I will pass this on to the correspondence team and see if they can put something together for you."

 

What else can I say about that lot?

 

I dont think they are aware yet that a hearing has been scheduled. If they are, they dont seem to care. Still they havent responded to my letter requesting a breakdown of the arrears. Just wondering if its worth sending out any more letters asking for the confirmation of their decision regarding my offer, and another letter asking for the breakdown. My thinking is, the more evidence I have in court to show I have been actively trying to resolve can only help my defense.

 

Any thoughts?

[newstarter]

" they just dont seem to care " now your getting it,they know your going to court alright mr z,you see how easy it was to accept your payment this morning no internal confusion at nr then was there ? to be honest mr z i wouldnt bother sending out more letters it wont have the desired effect of either bringing them to their senses,all it will do is make you more frustrated with regard to the situatuation as a whole,your mind can run through endless senarios,cups of tea or coffee at 3 am in the morning just wondering how the situation could have grown so vastly out of proportion.My advice now would be to stand back,look at the whole picture,dont try and look for the reasoning behind this because you wont find any,get ready for that court hearing,make sure you take copies of all relevent paperwork and if nr,s reps are there dont feel pressured into making a deal,have non of it and proceed with the hearing.

[MrZ]

 

Thanks newstarter. I appreciate the advice, as I have been doing exactly that...asking lots of what ifs. I will try to put it out of my mind for the weekend and just wait for the hearing.

[newstarter]

Yes clear your mind for the hearing you will be fine,enjoy the weekend,any last minuite questions beforehand either about paperwork or the hearing,just shout me,i wont be far from the cag.

[MrZ]

I will try. Thanks again for all your effort. I am truly grateful.

[Ell-enn]

Hi there, make sure you have evidence of the payment you have just made so you can take that to court with you. Might be an idea to write an up to date statement detailing latest conversation with them, any letters since you handed your N244 in and of course proof of the payment you just made. You can easily hand the statement to the judge during the hearing. If yo need help with writing it, please let me know.

[MrZ]

I am going to my bank on Monday to get a mini statement which will show the transaction. I cant do it today as it wont post until after midnight. Failing that I also have the auth. code from the transaction...and as a last measure I also recorded the conversation on my Dictaphone.

 

I would love some help with an updated statement.

[Ell-enn]

OK, I will draft it and post on here tomorrow (I won't be able to do it tonight as I have people for dinner).

[MrZ]

Of course, no worries. Thanks for your help.

[Ell-enn]

Apologies for delay. Statement for court is affixed. Read through it carefully and enter the info where there are XX's.

 

At the hearing the judge will speak to you first as it's your application - when he/she has finished speaking you should say "Sir/Madam, may I give you an up to date statement" and just hand it over. Take another 2 copies with you to court, 1 for yourself and one for the other side's representative. If the rep for the other side approaches you before the hearing, do not give them a copy, wait until the hearing and after handing the judge the statement pass a copy to the other side's rep.

Mr Z Statement for Court.doc

[MrZ]

Once again, I cant tell you you how much I appreciate your help and advice. I can hardly wait for tomorrow morning to get this all behind me. I will post an up date first thing.

[MrZ]

I'm just back from court and wanted to post an update first thing.

 

The judge has ruled in my favour and suspended the possesion on terms. The terms being exactly what my offer to NR detailed. I am to carry on paying the monthly payment with the 75.00 toward arrears.

 

The agent representing NR/Optima legal, had no real argument in opposistion. Her only argument was that the mortgage had been in arrears previously, and that NR had capitalised the arrears in the past. The judge didnt comment on her position. He basically agreed that while NR was justified in applying for the possesion warrant, that the Norgen ruling provided that I was entitled to repay. He also iterated to the Optima agent, that the arrears would be payed well before the end of the term of the mortgage under my repayment offer. He then went on to give a stern lecture to me about not allowing the mortgage to go into arrears, and that if I were to appear before him again due to arrears, he may not be so inclined to stay the possession.

 

So a good end result, and I bet NR are none to pleased.

 

I however, am estatic!

 

So much thanks go to the CAG forum and all the contributers. I would especially like to thank newstarter and Ell-enn for all of their support and advice. Without which, there is no telling what might have happened.

 

So once again... THANK YOU! THANK YOU! THANK YOU!

[newstarter]

A fantastic result,i know how worried you were over this hearing, another familly that can rest easy this christmas,and thank you for the update,however,just a word of caution,whatever the state of your finances in the future make sure above all else your mortgage is paid first(and the arrears payment) if someone else has to wait,then so be it.However its wonderful to hear that news,good luck and god bless.

[MrZ]

Wise words, well spoken.

 

Trust me newstarter, as I told the judge, you wont be seeing me in that situation EVER again! Thanks so much for your time and efforts. I am sure you will see good fortune in return.

[Ell-enn]

Brilliant news! Well done I hope you can now relax and have a happy Christmas in your home.

[MrZ]

Thanks so much Ell-enn, and we will.