Kensington v angnnig

[angnnig]

Hi I hope someone can help.Today we received a notice of commencement of possession proceedings from Kensington mortgages for the 24/01/2011.They say we owe £5150.47 in arrears and we are 3 months behind with the payments,We did write to them to explain we were experiencing financial difficulties due to the ressesion and asked if we could have the amount we pay off the arrears lowered ,they sent us a income /expenditure form out which we filled in and sent to them ,they asked how much could we afford to pay and we wrote to them with the amount we could afford to pay and then we recieved a notice of possesion order. The arrears include unlawfull charges over the past 4 years.Is it possible to counter sue for these charges.Any help appriciated ,thankyou.regards angnnig

Edited December 24, 2010 by angnnig

[Ell-enn]

Hi there, charges cannot be added into the arrears, they are a totally separate issue. Kensington were recently fined by the FSA for their unfair charges. Do you have a recent statement showing the charges and missed payments?

 

Have you actually received any court forms for possession or just a letter from Kensington threatening court ?

[angnnig]

Hi Elle-enn,thanks for your reply ,we do have copies of the statements kensington sent them in with the letter they just sent.The letter is from Kensington,s solicitors called Drydens limited.regards angnnig

[angnnig]

no court papers as yet

[Ell-enn]

OK, how much are the charges? I think you need to write to Kensignton and their solicitors pointing out that you are aware that the FSA have told them that payments you make should be used to reduce the arrears and not the charges and confirming what you can afford to pay - if you need help with a letter please let me know. Also complete the affixed budget sheet as it is more true to life than any I & E form they will ask you to complete! (it's used by the Nationaldebtline) We can then use a copy of the letter in defence of any legal action and will show the judge that you have tried to negotiate with them which will go in your favour.

 

You should also claim back the charges from them and we have a letter for that - if they refuse to refund you can then ask the FOS to intervene on your behalf.

Budget Sheet.xls

[newstarter]

This is an all to familiar story with Kensington,as Ell-en says they cannot add charges to the arrears,this is done to make the arrears figure look worse than it is when they take you to court.A good way to start the ball rolling in terms of fighting these sharks is to send a subject access request to Kensington asking for all the information they hold on you and your account this will include

 

statements

 

copy of deeds

 

copy of mortgage agreement

 

a record of payments recieved by Kensington

 

and (most importantly) a record of all charges added to the account,and arrears charges

 

send a letter stating that this is a subject access request and ask for the above,enclose a 10 pound postal order and send it registered post,keeping a copy for your records.

 

Dont get involved in telephone conversations with them where they ask you for lump sums to clears arrears and dont be scared by any threats they may make.They obviously have not abided by pre action protocols that all lenders should adhere to when dealing with borrowers in arrears (but then again Kensington never do!).From now on only communicate with them by email or letter,that way you leave a paper trail that you can use as part of your defence,dont forget to keep copies of all paperwork you send or recieve.

[newstarter]

p.s they have 40 days to respond to your request and they have to provide that information by law,(data protection act) you could also send a letter with the request stating that you diispute the arrears figure,this will bolster your defence in court as it puts your account into dispute.

[angnnig]

Hi Elle-enn,Thanks for the advice ,I have tried to open the budget sheet but its just appearing all scrambled up ,I would really appriciate help with the letter to them about reducing the charges and warning them of the FSA,thanks.We recently tried to claim charges back from SPML our main mortgage lenders and the FOS said that we shouldn,t be entitled to any charges from SPML and decided that they wouldn,t help us to get any charges back.regards angnnig

[angnnig]

Hi newstarter ,thanks for your advice,,I dont hold out much hope with the FOS helping but the courts may be more fair when dealing with unlawfull charges,is it possible to counter sue in court about the charges as we have about 3 years out of 4 statements from them ,regards angnnig

[newstarter]

Yes it is possible,you would however have to show that you had exausted the normal channels first,ie complain to your lender regarding unfair charges,then the F.O.S,again if you get no joy as long as the claim is for less than 5k you can start an action for unfair arrears charges in the small claims court and this option wouldnt cost you an arm and a leg in court fees,you can even file a claim on line but as already stated you would have to show that you had exausted the above avenues before doing that,if you have then i can advise on how to file a claim,regards N.S

[newstarter]

P.S i think in your case,as i suspect you would be claming well over 1k the fee would be 110 pounds.

[angnnig]

Thanks for your advice n.w.Kensington have give us a court date for the commencement of possession proceedings on the 24/01/2010 so it would take too long for us to complain to them and then the fos about the charges.We have statements going back about 3 years,so should is it worth me working out what they us in charges and try to counter sue for them?. We are on tax credits and on a very low income, is thier a chance we could get away with a fee remission as we really cant afford to pay anything at the moment?regards angnnig

[newstarter]

Yes you could counter-sue but any action along those lines would fail at the first hurdle and here,s why,before you make a claim against anyone or any company no matter how much you think your in the right ,you must have shown that you had firstly exausted all other avenues,ie internal complaints proceedures,then the F.O.S before bringing the matter to court without some proof of pre action your claim would fail.Your first port of call should be a strongly worded letter to Kensingtons themselves,advising them of their obligations to borrowers to exaust all other avenues before beginning a claim and include your concerns over charges added to the arrears and also mention the fine they recieved from the F.S.A for unfair charges added to customers accounts who were in arrears,inform them that the charges are in your opinion unfair and unless those charges are refunded you will be reporting them to the F.O.S.

 

All the evidence,ie statements you have you will need to take to the hearing in Jan,this will form part of your defence and as your only 3 months in arrears there should not be a problem,Ell-enn will help you withe your n11m defense form,Kensington should not be bringing this to court at such an early stage and with what seems to be little in the way of arrears,believe me you wont loose your home.You really need to get a letter off to them A.S.A.P and a S.A.R request in my opinion,forget about a counterclaim at this stage it wont work without you have taken other action first,make sure you show the judge at the hearing your evidence of all the charges added to your account and the arrears figure(that wont go down well i can tell you),in short get the hearing over first then get the charges back.

[newstarter]

p.s if you do go down the small claims route,you would need form ex160 exemption from costs form and your total income must not exceed 15,450 pounds per year.

[angnnig]

Thanks for your help N.W.I will take your advice and leave the claiming of the charges till later.I may need some help with the court forms,if you or anyone else could help me we would really appriciate this.thankyou again for your advice ,i feel a bit more positive about things now.all the best ,regards angnig

[newstarter]

no probs.N.S

[angnnig]

Hi again,I am about to calculate all the charges from the statements that i have got from kensington.I know that i can include the £50 monthly arrears figure in my list of unfair charges but not sure i can include "compound interest on arrears ",agents costs",counsellors costs and "notice of default charges" Thanks regards angnnig

[newstarter]

Go for the lot,they will probobly make you an offer anyway

[angnnig]

Thanks N.W will do ,kind regards angnnig

[newstarter]

no worries,any probs just get back to the forum have a good xmas and i wish you a happy new year

[angnnig]

Thankyou N.W all the best to you too:wink:

[Ell-enn]

Hi Elle-enn,Thanks for the advice ,I have tried to open the budget sheet but its just appearing all scrambled up ,I would really appriciate help with the letter to them about reducing the charges and warning them of the FSA,thanks.We recently tried to claim charges back from SPML our main mortgage lenders and the FOS said that we shouldn,t be entitled to any charges from SPML and decided that they wouldn,t help us to get any charges back.regards angnnig

 

Hi there, I have affixed the budget sheet in pdf format, you will need to print it out and fill in (do it in pencil so you can change the figures to suit before completing in ink).

Budget Sheet.pdf

[angnnig]

Hi Ell-enn,Thanks for sending the new link,kind regards angnnig

[Ell-enn]

Hi there, have you added up all the charges on the statements? you can't include the interest on the arrears (that is payable) or the solicitor's fees. You can however request a breakdown of how the solicitors costs have been calculated - if you are to pay the bill then you have a right to know exactly what you are paying for.

[angnnig]

Thanks Ell-enn,yes I have added all the interest on arrears fees,monthly arrears fees ,councillors fees and default charges.I,ve done the letter to kensington ,i would have posted it on here but my scanners not working.i have it stored in my documents , If you wouldn,t mind could i send it to you by email or something and if you could let me know if you think its ok,I would appriciate that thanks ,regards angnnig