Urgent Help Needed - Eviction out of blue

[sixofspades]

Plus the budget sheet !!

 

Lets hope Kensington accept the proposal and cancel the eviction.

 

I did not list the budget sheet as the letter contains the lines...

 

Our situation has now improved and as you will see from the affixed income and expenditure sheet we will be able to meet our contractual monthly payments going forward together with £300 towards the arrears each month. We are also able to offer an immediate payment of £1,500. Following our recent telephone discussions we also affix 2 Third Party Contribution letters and a Third Party Authorisation form.

 

They're all accounted for in the proposal. I hope that's ok. I have also numbered each page (Page 1 of 5, Page 2 of 5, Page 3 of 5 etc etc) so they are aware of how many sheets they will be receiving. And I have also added the extra info in the top left and top right hand corners as you instructed (mortgage account number and my parent's names respectively)

 

I'm very tired and I'm heading to bed as my concentration is starting to go. Busy day ahead tomorrow.

[sixofspades]

Hi Ell-enn.

 

I have faxed the documents to Kensington this morning and then telephoned them to make sure they have received them. They have. However, the woman I spoke to on this occasion is being very, very awkward.

 

1) I asked for an up to date statement of the account to be sent and she told me there is a £20 fee for that. Can they charge is this fee? I have a statement of the account from the 16th July - would that suffice?

 

2) She has told me that even though I am now authorised to speak on behalf of my parents, she cannot send out a letter confirming that because "we don't do that". I'm now worried I won't be allowed to attend the court hearing - I still have the signed 3rd party form that we have faxed though. I have also added my telephone number onto the account but she insists that they still won't talk to me unless my mother or father answers the phone first - I'm now wondering what the point in me being 3rd party authorised is.

 

3) She has also told me that the management won't make a decision on the proposal unless we send them bank statements and payslips and records of our other debts. She has also said that when we pay the £1,500 later on today, this will not help the management in making a decision or stopping the eviction.

 

I'm so angry at her right now (I wasn't during the phone call) and feel like she's just trying to pressure us into submitting details that they're not legally entitled to. I have a feeling this is going to end up in the courts.

[sixofspades]

An update.

 

I have been to the CAB today with my parents and they are helping me finalise our defence. They are contacting Kensington on our behalf to make sure everything that can be is being done including making them aware of the legality of demanding bank statements from us (The CAB girl said it sounded like like Kensington were using "Stolen Tactics"). The CAB have also drafted me a letter that requests I represent my parents in court (this was attached to the n244) that the judge will see.

 

We have also been to the countycourts today and now have a hearing date for the 28th July (Wednesday) at 10.30am. We have also paid £1,500 arrears to Kensington as agreed.

 

The clerk at the countycourts has also arranged for a free consolation with David Gray Solicitors before the court hearing on Wednesday morning.

[Ell-enn]

An update.

 

I have been to the CAB today with my parents and they are helping me finalise our defence. They are contacting Kensington on our behalf to make sure everything that can be is being done including making them aware of the legality of demanding bank statements from us (The CAB girl said it sounded like like Kensington were using "Stolen Tactics"). I think she means stalling tactics

the CAB have also drafted me a letter that requests I represent my parents in court (this was attached to the n244) that the judge will see.

 

We have also been to the countycourts today and now have a hearing date for the 28th July (Wednesday) at 10.30am. We have also paid £1,500 arrears to Kensington as agreed. That will significantly help your case.

 

The clerk at the countycourts has also arranged for a free consolation with David Gray Solicitors before the court hearing on Wednesday morning. That's good, they will be a great help and will no doubt go into the hearing with you

 

What did the CAB do to "finalise" your defence ?

[sixofspades]

Well firstly, the CAB were blown away with the help you've provided for my family and mightily impressed with the paperwork we had for them. The CAB advisor who we spoke to is now hot on the heels of Kensington - she mentioned they like to drag their feet when it comes to acknowledging faxes etc - and so is making sure Kensington are away that the CAB are supporting us.

 

As for finalising the defence, she is advising me on what bullet points I need to hit when making our case to the judge and what not to waflle on about. As we'll realistically only have 7.30 minutes to make our case, she wants to make sure I know exactly what to say and what not to say, what to address and what not to address. She is also giving me a crash course in the legal ramifications that the Cheltenham and Gloucester v Norgan case had on how the courts deal with mortgages cases. I've already done a little research and know the basics of it

 

Could you possibly outline that case and the Administration of Justice Act 1970 for me if you have time though?

 

Also, my father as asked if we have a right to appeal the courts decision should the rule against us on Wednesday.

 

Thanks.

[Ell-enn]

Affixed are the details of both the Norgan case law and S.36 Administration of Justice Act

 

If it doesn't go your way at the hearing you should ask the judge for leave to appeal, but you won't have to ask!

Cheltenham & Gloucester v Norgan.doc

[letsdothis]

Could you possibly outline that case and the Administration of Justice Act 1970 for me if you have time though?

 

In laymans terms, if you owed 10k and had 120 months left of payments for your mortgage, the court / Judge could split this over the remaining term.

 

ie:

 

10,000 / 120 = £83.33 per month repayment of arrears plus your normal monthly mortgage payment.

 

I know you are worried, but you are reading far too much into what will happen. As long as you can show the Judge that you can afford the monthly payment, and a chunk of the arrears each month thereafter, then your home will be safe. Having been in a far worse position to you, from experience, the Judge is on your side. If it helps, I had a months breathing space for the arrears as well. ie I had the court hearing in May, and the Judge ruled that my arrears payments started in July.

 

All that matters is that you can truly afford to pay it.

[sixofspades]

Thank you all for your words of encouragement. They mean a lot to me and are helping me stay focused.

 

We can definitely prove with our prepared budget that our proposal is affordable and flexible for if/when the mortgage payment increases. As I mentioned in an earlier post, we've paid £1,500 off the arrears today and that has reduced the total arrears owed (inclusive of Kensington's charges) to £9009.29.

 

I'm feeling confident. I'll keep you all updated over the coming days.

[letsdothis]

I'm feeling confident. I'll keep you all updated over the coming days.

 

So am I.

 

People normally only lose their houses because:

 

1) They do nothing about it and accept that that is that and let it happen

2) They cannot afford it, or if they can, they fail to convince the Judge that they can afford it thereon

 

You are in a good position now, and TBH the amount of arrears is not huge, although it is to a lot of people.

 

If you think about it, if you weren't committed to sorting this out, there is absolutely no way you would have paid your last (spare) £1500 to the OC - A Judge would see that as well. It shows commitment.

 

Good luck on everything.

[sixofspades]

We also have the first of the monthly mortgage payments (£600) + arrears payments (£300) ready to be paid this Friday should the judge rule in our favour.

[Ell-enn]

We also have the first of the monthly mortgage payments (£600) + arrears payments (£300) ready to be paid this Friday should the judge rule in our favour.

 

 

You might find that the judge orders the first payment of the arrangement to be made on 28th August - it's not absolutely certain he will do that, but it's quite common for a judge to order the first payment one month after the hearing.

[sixofspades]

You might find that the judge orders the first payment of the arrangement to be made on 28th August - it's not absolutely certain he will do that, but it's quite common for a judge to order the first payment one month after the hearing.

 

If he does that and we skip this Friday's payment to make it a month later in accordance with such a ruling, will this mean Kensington could still charge us arrears for missing the month of July or would the Judge's suspension of eviction ruling prevent them from doing that?

 

In other words, does the judge's ruling effectively freeze the account from accruing arrears or requiring any payments until the date he says repayments should begin?

[sixofspades]

Sorry for the lack up an update today. There have been a number of developments that I've been busy dealing with, as well as preparing for a hearing.

 

I'll be back with an update on Wednesday.

[sixofspades]

Hi Ell-enn, can you offer any advice on the following?

 

Yesterday, the CAB have been working with us to get an agreement out of Kensington and we've been successful. Kensington have agreed to cancel the eviction and accepted our proposal. They will also let us suspend repayments until the 30th August but all of this comes with a condition - the proposal will come under review in 3 months time. They have also told the CAB that requiring bank statements and payslips is part of their procedure for making these decisions. The CAB told us to accept as it would look bad to a judge if we were seen to be refusing an offer to stop the eviction and also because it keeps a roof over my familiy's head.

 

Kensington told the CAB that having looked at our income and expenditure, they think we could pay more which has really got me angry. We've given them £1,500 and an offer of £300 per month towards arrears which will pay of the arrears (plus their added fees) in 30 month and they're still planning on trying to get more by way of a review in 3 months! Our mortgage term is for 19 years and considering the precedent set by the Cheltenham and Gloucester v Norgan, I just can't believe they're acting like this. Actually, I can - everyone I have spoken to about Kensington have said they're like this.

 

Is it just me or is this totally unreasonable? I feel like Kensington are just using stall tactics so that....

 

1) In not having to abide with a court ruling, they can just mess us around at their own discretion.

 

2) They can command our lives by threatening us with evictions when they decide they want more money in 3 months time. The flexibility in our expenditures is there for when the base monthly mortgage payment increases in the future and for when my mother's IVA payments increase. It's not there to give a demanding and unreasonable Kensington even more arrears money as we've already had to reply on 3rd part contributions from my sister and her partner. Having these arrears all paid off in 30 months is surely reasonable!?

 

I feel like we've been blind-sided by them.

 

I am still attending the court today with a CAB letter + my prepared defence to inform the Judge of the agreement that has been made. See, Kensington have agreed to cancel the proceedings as part of our agreement but if I turn up today and find that they have not cancelled them, can I consider this a breach of the agreement by Kensington and go ahead with the hearing in order to obtain a court ruling?

 

As of right now, I'm preparing for another court battle in 3 months time. I refuse to let my family live under the threat of the strong arm tactics of an unreasonable company who aren't being kept in check by a court ruling.

 

If I find Kensington make an unreasonable offer in 3 months, what should I do? Can I make a case at the county courts for this?

 

I'm really feeling like we should not have accepted this agreement but what choice did I have?

[sixofspades]

Well, I'm now feeling much better than I was this morning. Here's what happened at the courts.

 

We arrived and discovered that the hearing was still booked in for 10.30, We showed the court usher the CAB letter stating that Kensington had made a verbal agreement to cancel the hearing and that they were supposed to have faxed the court to inform them. The usher instructed me to check with the courts admin and after a search, they found the fax - it had been sent very late last night.

 

Having confirmed this, the usher spoke to the judge to see if she still wanted see the case and she did. Together with a solicitor from David Gray, the judge brought us into the courts about 45 minutes before the hearing to discuses it. We explained the agreement Kensington had made with us and when she heard that they were going to review our proposal on their own terms in 3 months time try and get us to pay more, she and the David Gray solicitor looked at each other in silent shock. She said what we had already offered was reasonable and affordable.

 

She decided that at 10.30, should Kensington not turn up, she would make a ruling that the eviction be suspended and has set a date in 3 months time to assess long term repayments and how affordable our current plan is, what with the mortgage being over 19 years and our repayment of the arrears only taking 30 months at the current rate.

 

Also, Kensington still insisting that we had to send statements as part of their agreement was another lie. We don't. They ain't getting them. And now that any review will be handled in a court, I'm satisfied that Kensington aren't going to be allowed to play ball on their own terms.

 

I'm in a bit of a hurry now so I'll be back with an update later. Thank you so so much to everyone who has helped, especially Ell-enn, the most generous person I have ever come to know in all my life. I'm not a religious person but Ell-enn, you are truly the personification of a guardian angel.

[letsdothis]

Well done.

 

Let the courts deal with it now, and you will be fine. In 3 months, if you have kept up the payments of the mortgage payment and the arrears, again you will have shown to the Judge, that you are committed to clearing the arrears.

 

I doubt very much will anything will happen in 3 months time. In fact the Judge will probably keep the current arrangement and not order any more to be paid per month. Initially the OC's solicitor asked for this in my case, and the Judge said no. The arrangement is this......

 

If you have been charged any arrears fee's or late payment fee's by Kensington, it maybe an idea to ask for them to be given back, either in a cheque or off the arrears total.

[sixofspades]

If you have been charged any arrears fee's or late payment fee's by Kensington, it maybe an idea to ask for them to be given back, either in a cheque or off the arrears total.

 

Thanks for the congratulations.

 

You've caught my attention with the above though. I wasn't aware that we were entitled to claim back those fees. Or have I read that worng? Obviously, we won't be accruing any additional arrears or late fees going forward from this date (unless Kensington decide to be sneaky and charge us for July) because we'll be hitting the mark every month.

 

So do you mean that I have the right to pursue the re-embursment of fees with regards to arrears accrued in the past years?

 

I'm a bit confused.

[letsdothis]

An arrears charge is unlawful. A little bit like asking for all your late payment charges back etc for your credit card.

 

All you need to do is to find out the extent of these charges and then send a letter asking for them back. If they do not comply you then write to the FOS to act on your behalf. I am in the process of getting mine back at the moment.

 

If you do not have a total of any charges, then you can SAR Kensington, this would cost you £10 and then once you get the list of charges back, add them all up on a spreadsheet and then add 8% stat interest to these. You then write to Kensington asking for them to be repaid. Chances are Kensington would then apply this figure to your account, wiping out some of your total amount of arrears.

 

Have a read of my thread, there is a letter from Ell-enn that you can send.

 

http://www.consumeractiongroup.co.uk/forum/home-repossessions/261263-your-house-being-repossessed.html

[sixofspades]

I'm definitely going to pursue this.

 

I must confess though, I'm not too sure of what the particulars are. Thanks to the info linking feature here, I know what a Subject Access Request but the rest is a bit hazy.

 

I have a statement for the account that lists various charges applied to our mortgage account from 1/4/09 to 31/3/10. These are...

 

Lender's Interest Only policy (no idea what that is)

Monthly arrears fees

Interest debit

Property Insurance

Returned Direct Debit fees

Solicitors costs

 

I've not calculated the totals for what was charged on those as it's only for one year (I'd rather do that when we get a Subject Request Access). However, of those mentioned above, what are we entitled to claim back?

 

Also, could you offer some clarification on what stat interest is and why it's 8%?

 

As I mentioned, I want to pursue this (I have Ell-enns letter now Letsdothis - thanks!) but fear I'm going to need some help.

[letsdothis]

Step 1

 

You need to obtain the total of all your arrears fees, and late payments fees.

 

You do this by doing a SAR - Send by Recorded Delivery and enclose a £10 postal order.

 

 

Dear Sir or Madam,

 

Formal Request under the Data Protection Act 1984 and 1998, and including the Right of Subject Access

 

I understand that you currently hold details of my personal / financial information within your internal record systems with regards to:

 

Account number: XXXX XXXXX XXXXX

 

Please supply me with complete details of all data held by yourselves, in regards to myself within your organisation, including, but not limited to:

 

1. Full copies of all contracts that you believe exist or have existed between myself and your organisation, including true copies of any documents you hold in support of the same.

 

2. A complete list of all transactions or statements relating to ALL accounts held by me with your organisation.

 

3. Copies of all documents which include any of my personal information including copies of any contracts or invoices, emails or computer records containing my personal information, or any records which pertain to this information.

 

4. Full copies or transcripts of any computer logs or database records kept in relation to me or in relation to my personal / financial information.

 

5. Full copies of any and all correspondence in postal, email or any other format that you have entered into with any individual, organisation or third party which contains my personal / financial information, or which pertains to me.

 

6. Where any previous information or records held have been deleted or disposed of, the methods used to do so, including dates, certificates or references confirming details of destruction. Where you are unable to provide such certificates, please provide a declaration, signed by an authorised officer of your company, confirming the dates and methods of destruction of this data

 

7. Full hard copy print outs of any of my personal / financial information held in a digital, magnetic or any other format which is held in any archives, backups or other storage devices / locations.

 

8. A copy of all telephone recordings are to be provided on a CD.

 

9. Full disclosure of all commissions or payments made or received by your organisation from / to any insurance provider.

 

Such submissions from yourselves, that the relevant data is now only held on Microfiche in date order and can only be provided at extra cost is unacceptable as it implies that such data is nonetheless retrievable.

 

I enclose the statutory maximum fee of £10.00 to access ALL data held by your organisation about myself.

 

You should be fully aware of your statutory obligations under the Data Protection Act and that any failure to comply with this request could result in an investigation by the Information Commissioners Office. You have 40 days in which to comply.

 

If you are unable to deal with this request, you should immediately forward it to the person within your organisation responsible for Data Protection.

 

I look forward to hearing from you in the first instance by acknowledgement of this letter, and a full response within the above designated time scale.

 

Yours faithfully,

Step Two

 

You then collate all of these fees onto a spreadsheet.

 

http://www.consumeractiongroup.co.uk/Spreadsheets/England/Complex-bank-charges-calc.xls

 

Step Three

 

You put these figures into the letter I linked to and send to the creditor

 

Step Four

 

See what happens.

 

Step Five

 

This is the step I am at at the moment, so I will keep you informed of developments.

[letsdothis]

Also, could you offer some clarification on what stat interest is and why it's 8%?

 

As you have been charged these fees, you are entitled to claim back the monies and stat interest. The 8% stat interest is what you can add legally as per going to court. Basically that money is yours and as such you can reclaim it and are entitled to charge the interest. This is the very minimum you should get back.

 

If the OC does not agree, then you would write or in other ways complain to the FOS - If they find in your favour (which is normal) then they would ask the creditor to put you back into the position you were should you not have had to pay for these charges. This would more than likely be:

 

Value of charges + 8% Stat Interest.

 

As I mentioned, I want to pursue this (I have Ell-enns letter now Letsdothis - thanks!) but fear I'm going to need some help.

 

Just ask for help, that's the beauty of these forums, we all want the same end result. Justice and to be in control.

[sixofspades]

Fantastic, thanks for that info!

 

Is the £10 charge for the requested data written into legislation or is it something the mortgage company decides?

 

For example, I asked them for a statement for the account last week and they wanted to charge £20 for it. Could they charge what they like for a Subject Access Request?

 

Hopefully Ell or someone else can give me a rundown of what those charges I listed in my previous post are. For the record, the charges I named that occurred over just that one year amount to £4,708.76. Most of that amount is "Interest Debit" and on some months, Kensington have charged a "Returned Direct Debit" fee twice in a single month.

 

My gut reaction is that this all sounds like seriously dodgy practices by Kensington.

[letsdothis]

Fantastic, thanks for that info!

 

Is the £10 charge for the requested data written into legislation or is it something the mortgage company decides?

 

For example, I asked them for a statement for the account last week and they wanted to charge £20 for it. Could they charge what they like for a Subject Access Request?

 

Hopefully Ell or someone else can give me a rundown of what those charges I listen in my previous post are. For the record the charges I named taht occured over just one year amount to £4,708.76. Most of that amount is "Interest Debit" and on some months, Kensington have charged a "Returned Direct Debit" fee twice in a single month.

 

My gut reaction is that this all sounds like seriously practices by Kensington.

 

The maximum any company can charge for a SAR is £10

 

£10 buys you everything that that company has on you. Therefore what they want £20 for, you should now get for £10

 

If the only way they can show your arrears charges is by a statement, then unfortunately for them you have just saved £10

 

You cannot get the interest back easily, but from what you have written, you should get all of the following back:

 

1) Returned Direct Debit fees

2) Monthly arrears fees

[letsdothis]

Just for the record, I love sending SAR requests to companies. The amount of data you get back (from experience) is tremendous.

 

It must cost the company a whole lot more than £10 just in time and all the messing around that your request has generated.

 

It's a kind of poetic justice as you have just cost them money that they can never reclaim back.

[Ell-enn]

Hi Sixofspades - well done for being so brave ! glad you got a sensible judge and legal help for the hearing (told you you'd be ok in court!)

 

As letsdothis says - you now need to go after Kensignton for the charges - arrears management fees etc.

 

As long as you keep to the payment arrangement there is nothing Kensignton can do.

 

I'm on holiday from work this week and have had visitors to stay - I'm also trying to decorate at the same time so I haven't been able to get on line much, but I see you have managed very well