spml ascendan eviction ++EVICTION NOTICE WITHDRAWN PRIOR TO COURT DATE**

[dave121]

Hi there, I'll start to draft a statement to go with the N244. I think the judge is going to be a bit annoyed with Acenden when he reads what's been going on ! Back shortly.............

 

Do you by any chance have a copy of the original suspended order from the court in 2005? it might show what the arrears were at that time

Thanks, El,I dont have a copy unfortunatley could i get one?

With this happening through the recession i was put on short time and still maintained the payments, i am back full time now and have been over a year with overtime starting shortly...so all is rosey on the employment front, my wife works part time.

Edited January 19, 2011 by dave121

[dave121]

just a quickie...the address is a po box is that still ok for a SAR notice?

[bustthematrix]

Hi Dave, below is the response by Suetonius from the main SPML/Acenden/Crapstone thread. It seems either one is fine so take your pick and off you go.

 

The address is the same for both SPML and Acenden. As Acenden administer the accounts, it might be worth while sending any Subject Access Requests to them

Data Controller: ACENDEN LIMITED

Registration Number: Z9251023

Date Registered: 01 November 2005 Registration Expires: 31 October 2011

Address:

ST JOHNS PLACE

EASTON STREET

HIGH WYCOMBE

HP11 1NL

 

OR

Data Controller: SOUTHERN PACIFIC MORTGAGE LIMITED Registration Number: Z7369271

Date Registered: 16 December 2002 Registration Expires: 15 December 2011

Address:

ST JOHNS PLACE

EASTON STREET

HIGH WYCOMBE

HP11 1NL

[Ell-enn]

Hi, affixed is the statement to go with Q.10 of the N244. You need to fill in the info where there are XXX's in the statement (remove the XXX;s). read through it carefully to make sure everything is OK. When you print it out, your printer needs to be set for A4 paper (not Letter size) so it all stays on one page.

 

On the budget sheet - write the Claim number on the top left hand corner and Appendix 1 on the top left hand corner. (Make sure the £50.00 you pay towards the arrears is the amount left over in Step 3 of the budget).

 

These are the instructions for completing the rest of the N244:

 

1. Your names

2. Tick Defendant

3. Suspension of eviction

4. No

5. Tick at a hearing

6. 15 minutes

Agreed by all parties: No

7. Write - Not applicable

8. District

9. Both Parties

10. Tick box for attached witness statement

Cross out all options except The Applicant Believes

 

1. Sign and cross out all options except Applicant
   
2. Sign and cross out all options except Applicant. Enter your address and contact details.
   

Now assemble as follows:

N244 - signed

Statement - signed

Budget Sheet - Appendix 1

 

This forms the pack to take to court. Make sure it is stapled securely together. You will need to take a photocopy of it all for yourselves so you have a set to refer to in the hearing. When you take it to the court you will need to pay a fee of £35.00 and it will need to be in cash. The court staff should be able to give you a date for the hearing while you are there.

 

Any questions, just shout.

Dave121 N244 statement.doc

[dave121]

Thanks for that all done!

[bustthematrix]

My comments in blue

Hi there brief history...

2005 spml get a repossesion notice it was suspended as long as i paid the mortgage plus £50 off the arears every month (arears at the time was £3300)it was to be paid on the 1st of every month.

Whilst this is true, the FSA Arrears Guidelines direct lenders to show sensitivity and be flexible on this point - especially where payments are being made within the month.

throughout that time until december this year i have paid within the said months,

This is a phenomenal payment record, for anyone, not to mention being in arrears to the extent of having a suspended repo order to deal with! It is both shocking and disappointing that they did not just capitalise your arrears after 6-12 months as many lenders would have done this automatically, even without you asking!

but not on the 1ST sometimes it was.

Well, would have been best if you'd had the due date set to last working day but never mind.

most i have ever been is 5 weeks behind, unexpected bills etc,

Goes with the territory doesn't it?

but always caught up.

Again that speaks volumes. Any judge will like that. So will the FOS when you go to claim all those monthly mortgage fees plus interest back!

december 2010,comes and i have a problem with my car, clutch goes £500 bill.

in hindsight i should have informed the MC.

Bozos that they are, may not have made any difference, BUT it would have made you look more responsible. Especially if you had this in writing.

28th of dec i send a cheque off for £600 december payment and a bit of jan (mortgage is £320 + £50 arrears) so that left a shortfall in jan of £140 i have just payed £176 now to ascendan where the other £26 come from ...god knows... so it is jan the 19th and i am up to date with my arangement from 2005,

Write to them confirming these payments and your concern at the current arrears balance and ask them to explain why .... you still have arrears of £3200???

 

The SARN will help to sort out their clever figure work:!: The more they've taken unjustly, the more they'll have to credit you back with. I see some lender spanking coming on

The woman on the phone was very clever with me and said" we are still evicting you, even if you pay the £176....you do know that dont you"

So i said well that will be down to the judge, so she says "oh have you requested a suspension" i said yes .. woman:"well we can still contest it":x i said at the end of the day it is the judges desicion...

then she changed her tune and said "oh of course it is, we will abide by the judges ruling, and if you win can you call us back to make a new payment plan"

Jesus christ is it a game of chess to these people!!!

I think a manager was listening in and told her what to say for the last part...

I also told her that most of the arears must be fees and told her to do the maths £50 per week for 5 years = £3000

[bustthematrix]

When/if this gets to court, simply focus on

1. Your past payment record

2. Your current and future ability to pay

3. ENSURE the new payment date is set to last working day, EVEN IF the lender wants to contest this, insist on it. The judge will be lenient - his/er focus will be to keep you and your spouse housed so take advantage of that.

4. Whilst waiting for the SARN data to arrive, you can send a pre-emptive letter to the lender to warn them about the implications of their actions. Highlight the fact that you now understand they potentially owe you much more than the arrears they are claiming. For now, until your SAR statements arrive, just guestimate this on the basis of their monthly arrears fee, any late/returned payment fees plus 8% interest per year applied to each charge (I have a spreadsheet that'll help with this later but a rough estimate is sufficient for an initial letter). The purpose of this is to try and get them to cancel the Warrant of eviction without you needing to go to court to defend it. Even if you win, they would normally get costs added to your mortgage UNLESS you can show the hearing was a waste of everyone's time as I say below.

5. Demonstrate to the judge your efforts to catch up and thereby stop this hearing altogether and to save further costs and wasting of the courts time and resources. Ask if s/he will make a costs order against the lender. Your letter in 4. above goes a long way towards this. I would send it to BOTH the lender and their solicitor as soon as possible and urge them to act accordingly. The fact that you have now caught up and can show you will have no problems paying the set payments should stop them trying to evict you.

Such correspondence will prove helpful when appealing to a judge for a costs order against them. i.e. not only should they be denied their costs (i.e. you don't have to pay) but they should also have to pay YOUR costs!!!...and wouldn't that be fun!!!

 

Anyway, the worst that can happen is that it goes to court, a payment plan is re-instated (to better suit your terms) BUT they get costs awarded against you.

 

If this happens, you should be able to get it back when/if it goes to the FOS! Imo, they are nuts with a capital N to be doing this - repossession is supposed to be the last of the last thing they do at this time - when everything else has been shown to fail!!! It's not even funny that they are being so hasty! They are seriously in breach of MCOB 13 at this point, BUT YOU, must, and I repeat must, document their behaviour in writing (even if you don't know the specific codes they've breached, which I suspect you don't - but neither do most until we read up).

[bustthematrix]

More on Letters you Should Think About Writing

 

Each time something untoward happens, write to query it and ask for an explanation. Your letter and their response/lack thereof becomes an audit trail that can be reference letter. I know the horse has bolted with the letter writing thing if you had not been doing it before but what you can do now is:

 

1. Get the SARN out

2. Gather all the evidence you can of past conduct (i.e. misconduct!) by them. From payment receipts to dodgy reponses to the stuff you mentioned about the buildings insurance.

3. Letters I suggest you write - these are story telling letters that will be extremely handy for highlighting their past misconduct when the time comes. Each one is focused on a particular chain of events. It's better this way than one mega-letter that covers everything!

You will want to write a letter that covers each of the following episodes NOW, it you have not done so in the past:-

a. What's just happened in December/January. I.e. your agreement to pay and catch up amd the dates you made payment.

b. The shocking comments in your recent phone call.

c. Details of past dialogue where they've been unreasonable about changing the payment date. MCOB says they have to give you a reason in writing if they say no to change of payment date and their reason must be reasonable, considering your circumstances!!!

d. Details of past dialogue where they've been unreasonable about capitalising the arrears, despite the clear advantages this offers to both parties. This letter should also highlight their refusal and the fact they probably did not give a substantial reason for doing so.

e. One that documents the debacle over the buildings insurance. How it started, what's been happening and the current state of play.

f. A seperate letter that guestimates the unlawful charges they need to refund. Don't include the buildings insurance premiums in this letter for now. Just keep it focused on charges.

g. Following letter f, there are other things to explore concerning remedies/damages to you which should be looked at later such as Credit File corrections, rebating of Legal Costs where necessary and remedy over the Buildings Insurance premiums matter.

 

Is the mortgage Capital and Interest (Repayment) or Interest Only?

Edited January 19, 2011 by bustthematrix

[bustthematrix]

When/if this gets to court, simply focus on

Anyway, the worst that can happen is that it goes to court, a payment plan is re-instated (to better suit your terms) BUT they get costs awarded against you.

Btw, when agreeing a new payment deal, be wary of giving too much away in relation to income and affordability! Unless you want to start paying more than mortgage + £50 pcm!

 

Any idea what they've been charging you in monthly arrears fees, late/returned payment fees etc over the years? Be careful because they've probably changed over the years (usually upwards!).

 

Btw, when did you first start having payment difficulties with this mortgage account? Since they got the suspended repo in 2005, trouble must have started before then which means the charges started from before then too.

[dave121]

Hi thanks for all that info....i will start making a journal, it is a repayment mortgage

first got into difficulty in 2002 but the £3300 in 2005 was a hell of a lot of fees, how far can you go back, it was 6 years for banks?

well i have the last 3 months statement from capstone/ascenden and there are over £300 in fees and arrears interest.. litigation fee £115

another letter i found said my arrangement had expired and i needed to set up a new one???? the judge arranged it back in 2005 didnt he?

Dont forget if you need to check a company out give me a shout...

the SPML group structure is massive and has a load of **** on it like, platform,lmc, etc

[dave121]

Thank you Ell-Enn, very much appreciated, when is the best time to hand the docs to the court, i was thinking wait while after the weekend just in case they(ascenden) have had a talk about things...i am sure there was someone advising the phone woman as it kept going quiet mid conversation.

my office program is not working so i will copy and paste to wordpad....

regards Dave

[Crapstone]

The arrears and the charges are fairly simple to work out. What bumps the charges up considerably is the interest charged that even they don't know how to work out. They may have charged you for insurance you didn't want or need and reluctantly removed the charge but not the interest. That fee for a returned direct debit may have been refunded and the interest but then put back on again as an adjustment in interest./ arrears. There are calculators you can dowload to check your statements, not easy to use but they do the job.

[peterjm]

Dave.

MY SUGGESTION IS THAT YOU TACKLE ACENDEN ASAP WITH THE PRE ACTION PROTOCOLS WHICH THEY MUST OBSERVE BEFORE TAKING REPOSSESSION ACTION.

THE RELEVANT PARTS ARE:

Send them this:

Under Section 5.5 of the Ministry of Justice’s Pre-Action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property, you should respond promptly to any proposal for payment made by the borrower. I quote:“The lender should respond promptly to any proposal for payment made by the borrower. If the lender does not agree to such a proposal it should give reasons in writing to the borrower within 10 business days of the proposal.”

section7 Alternative dispute resolution

7.1

The court takes the view that starting a possession claim is usually a last resort and that such a claim should not normally be started when a settlement is still actively being explored. Discussion between the parties may include options such as:

 

(1)extending the term of the mortgage;

(2)changing the type of a mortgage;

(3)deferring payment of interest due under the mortgage; or

(4)capitalising the arrears.

The protocols section 7 are an echo of the mortgage conduct of business rules (mcob)as posted by bustthematrix.

 

This is the basic ingredients of the standard defence that has so far worked 100%

1)You must start an FOS complaint to recover unfair charges and establish the true arrears figure on your account asap, you have an idea of your true arrears figure so use this pending return of your SAR

2)The repossession proceedings are based on a wholly inaccurate arrears figure grossly distorted by the unfair arrears charges added to the mortgage account despite FSA directives to the contrary

3)The preaction protocols and mcob rules governing such procedures have simply not been complied with

4)The precedental ruling in thre norgan case can be used to spread the whole amount of the arrears once the true figure has been established over the entire remainder of the loan.

 

This was the basis of a defence that worked very recently which you could tailor to your own circumstances but the object as I see it would be to avoid proceedings and the cost implications by tackling acenden with the pre action protocols first,they may back off if they know you are clued up.

 

1)I am the the defendant in this case and respectfully request the court to consider the following:I believe I am able to repay my mortgage loan and will be able to clear the arrears by the end of the loan term once the true arrears figure has been established.

 

THE FSA WHO REGULATE THIS LOAN HAVE DIRECTED THAT ARREARS CHARGES WHICH MUST BE A REASONABLE REFLECTION OF THE TRUE ADMINISTRATION COSTS AND NOT USED AS A PROFIT STREAM CANNOT BE ADDED TO THE MORTGAGE ACCOUNT.

GMAC,KENSINGTON AND REDSTONE MORTGAGE COMPANIES HAVE ALL BEEN RECENTLY FINED HEAVILY BY THE FSA FOR SUCH OFFENCES.

 

I have at all relevant times when experiencing difficulties with my mortgage due to the nature of my employment contacted my lender through their administrator Capstone/Acenden.The mortgage is a repayment mortgage and is a Financial Services Authority regulated loan.

To avoid repossession and the uneccessary costs of court proceedings I have attempted on many occasions to request that Capstone comply with the pre action protocols as laid down by the Ministry of Jusice.

In particular I would respectfully bring the courts attention to section 7 which states

7 Alternative dispute resolution

7.1

The court takes the view that starting a possession claim is usually a last resort and that such a claim should not normally be started when a settlement is still actively being explored. Discussion between the parties may include options such as:

 

(1)extending the term of the mortgage;

(2)changing the type of a mortgage;

(3)deferring payment of interest due under the mortgage; or

(4)capitalising the arrears.

 

I have asked Capstone to explore these options particularly the switching of the loan to interest only/changing the payment date but they have refused repeatedly without explanation to consider any of the above options available all of which would have eased my situation considerably and made these proceedings and their associated further costs penalties wholly uneccessary.

Instead of consideration of these options or explanation for refusal my account has been burdened with exorbitant arrears charges and demands ,

A missed or late payment currently incurs a fee of £85 raised from the previous figure of £60.

 

Section 12.4 of the FSA’s Mortgages and Home Finance: Conduct of Business sourcebook (MCOB) states:

 

A firm must ensure that any regulated mortgage contract that it enters into does not impose, and cannot be used to impose, a charge for arrears on a customer except where that charge is a reasonable estimate of the cost of the additional administration required as a result of the customer being in arrears.

 

2)I would respectfully submit that these charges can in no way reflect the additional cost of arrears administration and are in breach of this Regulatory Rule.When Capstone supply me with the correct breakdown of charges they have levied I intend to lodge a complaint with the Financial Ombudsman Service for their recovery in order that the true arrears of this account can be established,the current figure claimed is grossly distorted by the addition of these unfair charges many of which were incurred because Capstone refused to alter by a few days my payment dates.

 

 

I would respectfully request that the court to consider the case of Cheltenham and Gloucester v Norgan in which it was stated that arrears payments can be spread over the whole term of the loan when considering my offer of payment and also s.36 of the Administration of Justice Act 1970.

[Ell-enn]

These are pre-action protocols (i.e. before the very first stage of possession procedure) they have already taken possession action and got a suspended order in 2005 - this is an eviction case

[bustthematrix]

Peterjm --- this is fantastic, just what Dave needs, I think

 

Dave, please calmly think through all the advice you are getting, and then take action, step by step, ensuring you understand the importance of each action you take.

 

The steps outlined by Peterjm are great, but PLEASE ensure you send off your letters as suggested above (keeping copies!) to the Lender and maybe to their Solicitors too. If the lender is too daft/greedy to see sense, maybe their Sols will!

 

The letters are part of your key chain of evidence to be used with the FOS and or in court further down the road. As you keep reading and journalling (great idea btw), it will become clearer to you exactly where, when and how you've been wronged. Then you'll begin to see what you can and should do about it and what you can to receive as remedy.

 

It can seem overwhelming when you're in the thick of it, but thank God for a commuity such as this...

[bustthematrix]

These are pre-action protocols (i.e. before the very first stage of possession procedure) they have already taken possession action and got a suspended order in 2005 - this is an eviction case

True, but they are still relevant, IF IT can be shown that they WERE NOT followed when they should have been!

 

They clearly haven't and some of them are relevant after action has been taken i.e. now!

[Ell-enn]

You'd have to get all the paperwork from 2005 to prove that they hadn't complied and the pre-action protocols weren't in place then, although other procedures were.

[bustthematrix]

Thank you Ell-Enn, very much appreciated, when is the best time to hand the docs to the court, i was thinking wait while after the weekend just in case they(ascenden) have had a talk about things...i am sure there was someone advising the phone woman as it kept going quiet mid conversation.

my office program is not working so i will copy and paste to wordpad....

regards Dave

Dave, I would suggest you keep the Application to one side for now but make sure it's ready to be submitted. You may want to phone/visit the court to ask when is the latest you can submit it in time. When you do submit it (if it gets that far), make sure you highlight the urgency to the clerk you hand it to i.e. reference to the stated eviction date.

 

The reason I'm suggesting waiting is because you want to send off all your letters, file with the FOS and then call Acenden and/or their Sols AFTER they've had a chance to digest your letters and FOS filing. Even the very fact you've now involved the FOS will make them sit up. They are a regulated company - this means they have to obey the directives of their regulator, the FSA. They have to or they can be fined, suspended and even shut down.

 

Applying for the warrant setside as is, even though you'll likely win, does not offer the same benefits. Once those letters go out and a serious complaint filing is done with the FOS, all of that will have a bearing on your set aside hearing, if it gets that far.

 

By the way, the court will usually try to arrange the set aside hearing before the eviction date, unless you and the Lender can agree to have the eviction date itself moved forward OR if the court cannot have the hearing before it (due to being too busy etc), they themselves will move it to allow for the hearing.

 

Whatever happens, take heart - you are in a good place. The worst thing that can happen to someone in a repo/eviction situation is to be unable to service the debt - fortunately that is not you. So prepare for a good fight, one that you can expect to win.

Edited January 20, 2011 by bustthematrix
Clarity

[Ell-enn]

I disagree - you need to get your application in as soon as possible. You don't have time to wait for answers to letters at this stage, that can be done later - your most important task at the moment is securing the roof over your head so you have somewhere to write letters from!

[bustthematrix]

Ell-Enn, you have a point but this is extremely important knowledge that Dave can still use when filing with the FOS.

 

Pre-action protocols are a big deal in the finance industry. I get Mortgage Finance Gazette and the repo solicitors who write in it frequently cite these as amongst their worst obstacles. If used well, they are quite powerful.

 

Also, I don't think there's any harm in his adding it to his reasons for requesting the setsaside when the time comes. He only needs to show the possibility that they did not follow the pre-action protocols at that time nor indeed the arrears protocols currently in force. It is then for the lenders to show that they DID follow those protocols.

[bustthematrix]

I disagree - you need to get your application in as soon as possible.

I would have said yes, IF Dave was in the same camp as the many people in this scenario that fell out of work, went into arrears, went into a Suspended repo then broke it, were facing eviction, then got another job/income source and were now trying to renegotiate a new deal. He's not...the man has not missed a payment in five odd years!!!

It remains a mystery why these bozos did not capitalise his arrears...they WILL at least have to explain that

You don't have time to wait for answers to letters at this stage,

We're not saying he has to wait for answers to his letters. He is being pro-active by sending the letters as part of his evidence chain. Then after sending, follow up 2-3 days later by phone to see if they're still keen on evicting him with those FACTS on the table!

 

Also, filing complaints with the FOS is a waste of time if you cannot show you've raised your concerns with the offending institution first. Also, as far as costs awards go, doing the letters and FOS thing before applying for the set-aside means he's much more likely to get costs in his favour as he will at least be able to demonstrate how cynical and hasty the Lender has been!

that can be done later - your most important task at the moment is securing the roof over your head so you have somewhere to write letters from!

I don't disagree, but he has a 4 week+ window he can use to strengthen his case and there's no reason why he should not use it out of panic.

[dave121]

Thanks guys at work at the mo, so just had a quick scan, i can see both points, i will be in touch later..

S.A.R posted...

[bustthematrix]

Make no mistake about it, he WILL get a set aside hearing before the eviction date whether he files the Application now or in two weeks time (no later though). I've also seen much worse scenarios where people were scrambling about for money to raise a lump sum to either avert an eviction or bring the lender to re-negotiate a payment plan in court - and they only just managed it a few days prior to the e-date. Of course I wouldn't dare suggest leaving it that late but there's no need to panic.

 

Especially as his payments are now up to date.

 

The difference will be that if he sends out the letters, giving the lenders/sols an opportunity to clearly see their wrongdoings and follows up with phone calls, he most likely will get costs in his favour if it gets to a hearing. It should also make it easier for him to get the litigation costs that Acenden will have added to his mortgage account refunded. If he loses the costs battle in Court, the FOS can order them to be paid back further down the line.

 

For me, these benefits, are well worth waiting a week or two for.

 

Yet Dave, if you do plan to send out these letters, may I suggest you try and do them through the w/end and get them out Monday 24th? If you can post and fax them as well, even better.

As for filing a complaint with the FOS, at this stage, anytime is good I think. Never had to use them thus far as I've usually got what I wanted before needing to do so:-) .... though I do a see a day approaching when...

 

If/when you complain to the FOS, they will also need evidence of your efforts to address the matters you want them to resolve for you and any responses from the lender to those complaints. By all indications they don't move quick, I don't know if they have an emergency or fast track section though - those with experience can comment.

 

HTH

[bustthematrix]

another letter i found said my arrangement had expired and i needed to set up a new one???? the judge arranged it back in 2005 didnt he?

 

the SPML group structure is massive and has a load of **** on it like, platform,lmc, etc

...birds of a feather...

If you have not already done so, write back asking why and when did the arrangement 'expire'. Was it time-limited by the judge on the original order? The judge would never do that without your consent. The order is usually valid UNTIL the arrears are cleared.

 

Make sure you WRITE to the lender to query the so-called expiration, affirming you do not understand it and that you have always contiued to faithfully pay mortgage + arrears and have trusted them (their fiduciary duty to you) to ensure your arrears payments were being diligently used to reduce the outstanding arrears amount since commencement of the order. Also, it's an idea to ask the court NOW for a copy of that original order. You may also want to ask Acenden themselves and/or their Sols for their own copy of the original order just to ensure you're all on the same page.

 

Thsis could be another tort these muppets have committed against you...gosh, everywhere you look!!!

[Ell-enn]

Well Dave it's your call - if you feel you have the time to wade through all that before trying to stop the eviction all well and good. If you need any further help from me let me know.