Help needed!! **NO EVICTION**

[acerbic]

Many thanks Ell-enn, did anyone ever tell you that you are simply marvellous !!

Is there a time limit that could be put in the letter to speed things up? Or are we at the mercy of their complaints department?

My friends aren't too bothered about ruffling feathers any more, the mortgage co are trying to take the roof from over their heads after all !

 

What if we can't be specific about the amount being reclaimed due to interest charges and insurance policy premiums in the arrears figures, (and indeed on the arrears sheet).

Edited February 4, 2011 by acerbic
Missed a bit

[Blossomandebony]

Hi, Acerbic,

 

All you can do is your best estimate of what they owe; the FoS are supposed to check in detail with the other side in the dispute and you can add any futher information that comes to light later on. For your information, this is the interesting part of the fos Adjudicator's judgment which they sent to my mortgage lender, (who then had to either accept the fos's conclusions or send further documentation etc to refute the findings. And yes,they accepted the fos's conclusions):

 

I appreciate that an account in arrears requires further additional work to maintain it. However, I would expect to see evidence of this. Further, where it is clear that an individual has attempted to make payments and maintain them, then I believe it would be unreasonable to continue to levy charges.

 

Hope it's useful.

 

BAE

[acerbic]

Update, letter went off to the mortgage company, (recorded delivery). They then replied saying that they were looking into the complaint of excessive charges and would be in touch with their findings. In the meantime, the court has written with a date of 16th March for a hearing. This is to determine the orders in post #12.

I'vejust seen the general form of judgement or order, ordering that they keep up with their payments, plus £100 on top to go towards the arrears.

The judge also wants my friends to bring to court with them;

1)detail updated I/E with docs to support the figures

The updated I&E is not a problem.

 

2)detail proposals for a revised offer to clear the outstanding arrears within a reasonable amount of time

 

The proposal for clearing the arrears is a problem, how can they give a figure to clear the arrears if the true arrears aren't known??

3)details any advice given in relation to the level of charges made to the account by the mortgage company

Third point of post #12 we are still waiting for the mortgage company's response.

 

So, do we tell the court beforehand that the answers to questions 2 and 3 cannot be answered due to the fact that the mortgage company haven't replied? Could we ask the judge to do anything special on an N244 in view of the recent FSA findings against DB Bank and others??

I'm thinking along the lines of using the recent FSA publication in court to ask the judge to make a ruling against the mortgage company based on the findings??

 

Is this a good idea, is this the way to go??

 

We are also really concerned about the conduct on the account, for example, They instructed solicitors at a cost of £100 before they'd taken all other reasonable steps, I know they have breached some code, but I don't know which code. Is it the Mortgage code of business??

 

The house is now on the market, there is equity in the house, so I hope that the judge will not grant eviction as we are trying to sell. Evidence of this will be taken to court.

 

 

 

 

All comments greatly appreciated

[Ell-enn]

Hi, have they been making payments in line with the order following the last hearing? if so they won't be evicted. You can write an up to date statement and take it into the court a few days before the next hearing so the judge can see what has been happening (or not as the information has not been given by the mortgage company) - if you need any help with that please let me know.

[acerbic]

Hi Ell-enn, thanks for replying,

Yes they have made three payments on time, and for the correct amount. It would be great if you could give me a little guidance as to what to put to the judge. I have a feeling that the mortgage co will not agree to any refund. The trouble is that its the difference between £8K and £24k. I have thoroughly worked through the figures, and I can only see £8000 or true arrears, missed contractual payments. I was really hoping to use the oportunity in front of the judge to highlight the abuses. I guess that's for another time?

[Ell-enn]

Have you read this by Bankfodder? http://www.consumeractiongroup.co.uk/forum/showthread.php?296126-Hot-news-for-anyone-who-has-suffered-mortgage-arrears-charges-irresponsible-lending-or-other-unfair-lender-conduct

[acerbic]

Yes, I've read that and some of the points raised were the points I wanted to be able to put to the Judge. I'm just not sure a) how to go about it, and b)whether it 's relevant. By relevant I mean that if they aren't evicted, then that is a victory. Will the judge even be interested? I know they have a great case building here, especially after what I've seen in the SAR. But how am I going to get a judge to rule on these points if they aren't part of the original case? I guess what I 'm asking for is some wording so that the Judge is aware of the charges on the account being excessive. Then, should the judge see our point of view, would it be reasonable to ask for costs? damages? etc etc

[acerbic]

The FSA has identified a number of serious failings by Redstone which occurred between 1 January 2007 and 5 August 2009 in relation to its mortgage arrears handling processes and in its dealings with customers in arrears.

These include:

• Failing to ensure mortgage servicing staff acting on its behalf had adequate understanding of treating mortgage arrears customers fairly;
  
• Focusing on reducing arrears to less than two months, regardless of the customer’s personal and financial circumstances;
  
• Having written policies that led, in some cases, to the unnecessary use of litigation to secure arrangements to pay;
  
• Sending repetitive, excessive and confusing correspondence; and
  
• Applying four charges to customers’ accounts that were unfair and/or excessive.
  

 

Just looking at this original finding against Redstone, our mortgage company are guilty of points 2, 4 and 5. Further on in the findings it states

These were:

• A fee for a returned direct debit which was charged regardless of how many times the direct debit had already been returned unpaid;
  
• Including arrears fees and charges in the balance on which an early repayment charge was calculated;
  
• Charging for field counsellor visits in full to some customers who had not been properly informed of the timing of the visit and/or of their right to refuse or cancel the visit; or who should have been charged a reduced rate cancellation fee; and
  
• A fee for litigation activities, which was applied even when such activities were taken by Redstone unnecessarily.
  

 

These four charges are the same as our case. The mortgage company has made the same four charges.

[Ell-enn]

Let me have a think about the best way to draft the statement for the hearing. The most important thing is that they are not evicted and I very much doubt that would happen. If you have documentary proof of the charges added to their account then that makes your case a winner.

[acerbic]

Hi Ell-enn, good news then, because...get this.. it was the Judge that handed over the entire account activity to the defendants in court. The defendants said that they'd never received any accounts, and the judge countered, 'well have this then, its your account actvity', then went on to include point 3 of the general order. All in all a very helpful Judge, she could see straight away that the charges were excessive. I think the Judge was basically saying, ' you show me what legislation I must use against the mortgage company and I'll use it, but I can't tell you, you have to tell me'. Does that make sense??

 

Anyway, all documented in the SAR. have proof of the

Focusing on reducing arrears to less than two months, regardless of the customer’s personal and financial circumstances

as detailed in the telephone conversations obtained via SAR also.

 

Very much appreciate you helping with the wording of the statement.

[Ell-enn]

In the meantime, take a photocopy of the statements showing the charges and use a highlighter on each charge - at the end of the statement total up the charges and write Total Charges = £XXXX. Also take a photocopy of the letter requesting a refund of the charges. We will need those to accompany the statement.

 

They were very lucky with the judge they got

[acerbic]

I have the statement and all the charges are highlighted, I also have the hard copy letter for the refund. I have taken the liberty of including the legal fees in the charges as well. My basis for this is that the mortgage company were wrong to instigate legal proceedings based on the findings of the FSA in relation to DB and Redstone.

Basically, going through the whole account, if it wasn't the contractual monthly amount, then it's a charge!

[Ell-enn]

Good stuff I'll start to draft up the statement over the weekend so you can take it in to the court next week. I think we need to get the roof over their head secured first and at the same time let the judge know that the issue of charges is being addressed. i.e. the first steps in the route to getting the charges refunded has been taken via the letter sent to the lender. If they do not agree to refund then you can bring a claim against them in court.

[acerbic]

http://www.consumeractiongroup.co.uk/forum/content.php?705-Mortgage-arrears-template-letter

 

I have read the above letter, I think its much more powerful in light of the recent rulings by the FSA. However, the standard mortgage arrears letter (post #25), was sent and we are awaiting their response. Could we send this new letter to them as well, or do we wait for them to reply??

 

I've had another think regarding the whole situation after having read the latest rulings, http://www.consumeractiongroup.co.uk...lender-conduct

 

They got a self cert mortgage, was this mis-sold? Well on the application form, there is a tick in the box that says the mortgage will be repaid by the sale of the house. Am I getting all excited about this particular mortgage?? Have I read too much into one of the rulings??

We also fined the firm £840,000 for failing to:

• look at whether there were cheaper deals available for customers seeking self-certified mortgages; and
  
• ensure customers with an interest-only mortgage had thought about where they would live if they had to sell their house to pay off the loan.
  

 

Both of these failings from DB apply to our situation. There is more relevant info, I'm just reading through it now...

[TUTTSI]

Documentary evidence is absolutely vital to support the I&E and the proposals. Make sure your friends are comfortable with the proposal and that they have sufficient money to live on and not leave themselves short.

 

If you quote the Cheltenham & Glocester v Norgan, you can actually repay arrears over the remaining term of the mortgage. However, the lenders will probably apply for a suspended possession order so the quicker the arrears are paid off the better. We did ours over 4 years and thankfully this was accepted by the lender without us going to court and we have just paid the last instalment and we will be writing to our lender to ensure that the suspended possession order is now defunct and get their agreement to this. If we had missed just one repayment of the arrears that we agreed to repay they would have had our home just like that.

 

I also agree with Ell-Enn re the exhorbitant charges.

 

Let us know how they got on.

[acerbic]

Hi Ell-enn

I've had a go at a letter for the court, could you tell me what you think please. If you think there should be changes, plese feel free.

appendix 1 will have back up docs as requested by court

appendix 2 will be the marketing info from the estate agent

appendix 3 will be the letter and the statement with the charges highlighted.

 

I don't think I've worded the bit about the recent FSA findings strongly enough, but I'm at a loss to put it any stronger....

 

Many thanks

N244 Statement acerbic.doc

[Ell-enn]

That looks fine - well done

 

The judge will know what you mean re the FSA

[acerbic]

Is it okay to take that to court on the hearing date (16th) , or is it better to take it earlier, i.e this week sometime?

Many thanks for your help so far.

[Ell-enn]

It's best to take it to the court about a week before the hearing so it's put in the file for the judge to read before the hearing. Remember to take a copy for yourselves before handing it in.

[acerbic]

I can hear the words 'schoolboy error',

Does this statement get attached to a N244 form, or will it go in the existing file at court?

[Ell-enn]

Hi there, no - you don't need an N244 form as the hearing is already arranged, you just need to hand the statement into court before the hearing so it can be put in the file for the judge. Don't forget to take a copy for yourselves to refer to in the hearing.

[acerbic]

Okay, so copies were done, everything has gone to the court. Kept a copy for for referral. I have to admit, I am worried for them. Maybe just anxious really as I cannot get the time off work to go to court with them on wednesday. Something else that I've been thinking about as well.

 

Am i right in thinking that if the Judge agrees to the Norgan case being applied to the arrears, (once we know the true amount), does that mean that the monthly repayments will go up a little bit, (to cover the additional sum), but there will be no more arrears???

 

I am racking my brain as to what the mortgage solicitor could possibly come up with to undo all the hard work put in so far. Can anyone think of anything that could throw a spanner in the works?

[acerbic]

Final briefing tonight, make sure everything is in its place for tomorrow. I will let you all know how it all goes.

[Ell-enn]

Hi there, I'm sure it will all be fine. I'll be on line tonight if you need any support

 

Re the arrears - the Norgan case law allows the judge to order that the arrears can be paid over a longer period of time than the lender would normally like. You are correct in that the monthly payments will increase to include an amount towards the arrears, however the arrears will not go away, each month that you pay the extra the arrears will decrease.

 

If the lender capitalises the arrears i.e. adds them onto the outstanding balance of the mortgage, then you have no arrears - but still increased payments to cover the extra interest on the capitalised sum. However, the judge cannot order the lender to capitalise the arrears as he cannot alter the main terms of the mortgage. In a lot of cases, if you make consistent payments (both normal payments and amount towards the arrears) for say, 6 months, lenders will ofter consider capitalising.

[acerbic]

Thanks for the reply, I've told them that they should expect to pay around £36 per month over their mortgage to cover the arrears. Thing is, I calculated this to be over the remaining term of the mortgage, (18years). So if they offer to stick to £100 per month for the arrears, then they will be paid off in 6 years 8 months. Would the judge allow a proposal for that amount of time?

Also, they haven't had their final response letter re charges, so do not know the true arrears yet. How do you think the Judge will view that?