Eviction - Pickering Finance -EVICTION CANCELLED - now trying again!

[Ell-enn]

Great news - well done for being so brave

 

Hope it all works out for you.

 

Ellx

[lanesra14]

Hi all,

 

Received an eviction letter last week stating eviction date was the 12th. My partner only showed me the unopened letter today (13th) along with a previous Notice of Eviction Letter she didn't show me several weeks ago (was worried as we've been through this once before, and this is her mortgage, her property)

 

Anyway, we intend to defend the action and just wondered if an N244 submitted tomorrow morning would be possible given that the date has expired.

 

Many thanks

[Ell-enn]

Hi there, are you sure the actual eviction was due to take place on the 12th?? if so I'm surprised the court bailiff hasn't been in touch.

 

Please confirm exactly what the letter says - was it from the lender or the court?

 

Is this the same case as last September? i.e. secured loan or is it the main mortgage?

 

I can help you with an N244 application if you need me to.

[lanesra14]

Hi Ellen,

 

Yes this is the same case as last SEptember (secured loan). Went to submit n244 this morning seeking a suspension of eviction on the basis that our finances are much better as of July 1. The court was also surprised that nothing had happened on the 12th as expected. They checked with bailiff who said they failed to execute the warrant on account of not getting a locksmith on the day.

 

Court lady advised that we should be seeking a variation instead of suspension of eviction as the eviction date on the warrant has passed. Not sure if this is the best thing to do. Btw, That costs £75 instead of £35.

 

She also said that the lender will have to reapply to the court for another warrant since they failed to execute the previous one. Is this correct?

 

In the meantime, we need to decide tonight whether to apply for a suspension or variation...before they gazzump us with a fresh application for a warrant.

 

The letter from the bailiff is a n54 notice of eviction. Says we had to vacate on the 12th at xx:xx

 

Many thanks for your support Ellen and others.

[Ell-enn]

Hmm, it's a trickly one - what would you be asking the court to vary?

 

What did you offer to pay on the N244 ( did you use the same format we did last time and include a budget sheet?)

[lanesra14]

Yes we completed N244 as before (incl.Income/Expenses + Statement + copy of direct debits since last September showing all payments on time....until we missed April, May and June since we went back to 1 income became overstreched).

 

Found the following info on Applying to Vary a Possesion Judgement (from Avoiding Evicition From Your Home at Housing Repossessions (UK))

 

Applying to Set Aside or Vary a Possession Order

 

This type of application is most likely to be made by a borrower who did not know about the court proceedings and / or the hearing at which the possession order was made.

 

When a court issues a claim for possession they will send the borrower a notice giving the date and location of the hearing. The lender is legally obliged to send a letter to the property giving the time, date and location of the hearing. However, this letter must be addressed to “The Occupier” and is frequently ignored by borrowers.

 

If all the necessary documents have been sent to the correct address they are deemed to have been delivered and the lender is entitled to ask for a possession order. This is true even if it can be proved that the documents were not received by the borrower.

 

To have a possession order set aside, borrowers will have to prove that:

 

they had a good reason for not attending the hearing; AND

the possession order would not have been made if they had been present.

If a borrower did not receive notice of the hearing this may provide a good reason for his failure to attend. However, the borrower will still have to convince the court that the possession order would not have been made if he had been present. When a mortgage is in arrears and the lender’s case has been correctly presented it is highly unlikely that a court will agree that the possession order should not have been made.

 

To succeed in his application the borrower would probably have to prove that:

 

• the lender had acted incorrectly;
  
• there was a problem with the way the lender had presented their case;
  
• the arrears had been cleared or significantly reduced when the possession order was made; or,
  
• there was a valid defence to the claim, (rare in mortgage cases).
  

 

Strictly speaking, the judge should look at the circumstances as they were at the time the possession order was made. For example, if a borrower has cleared the arrears since the possession hearing the possession order should not be set aside because the lender was entitled to it when it was made.

 

Applying to Vary a Possession Order after Failure to Attend a Hearing

 

A borrower may argue that a suspended possession order would have been made if they had been at the hearing. A judge will consider the borrower’s financial circumstances and decide whether to substitute a suspended possession order. If the borrower can satisfy the judge that he is able to make payments it is highly likely that a suspended possession will be entered. The borrower may also be asked to explain why he did not attend the hearing.

 

Applying to Vary a Possession Order after a Change in Circumstances

 

If a borrower can no longer afford the payments he originally promised to make he can ask the court to reduce the payments required for the possession order to remain suspended.

 

A note of caution – the lender’s representative may argue that it is evidence that the borrower cannot afford the mortgage at all if:

 

• The borrower has failed to make regular payments of the monthly instalment plus the amount he now says he can afford; or,
  
• The original possession order provided for very low payments towards the arrears.
  

If a borrower’s financial circumstances have improved since the possession hearing, and he can now afford to make payments, an application can be made for a suspended possession order to replace the outright order originally granted.

 

Conclusion

 

There are steps that can be taken to set aside or vary possession orders but they are not guaranteed to be successful. Most judges will take the view that the lender is entitled to a possession order if there are arrears on the account and the lender’s case is correctly presented. It is up to the borrower to convince the court that an order should not have been made or that a suspended possession order is more appropriate

 

So is it advisable to apply for this instead? (Question 3: on N244)

 

Urgent responses appreciated (hoping to submit N244 by 2pm today)

[Ell-enn]

Hi there, having thought about this - the fact that the eviction warrant has expired has put you back in the position you were in before a warrant was issued. Perhaps it might be a good idea to write to the lender (by special delivery), explaining your circumstances and making your new offer of payment. This way you might just be able to get them to agree and not apply for another warrant.

 

If you need help with a letter, please let me know and I'll draft something.

 

If they do issue another eviction warrant we can then defend that with an N244.

 

The reasons for applying for a variation order don't exactly match your current position.

[lanesra14]

Thanks Ellen,

 

Decided not to submit n244 for the same reasons you site. Will write to lender with new offer.(could use your guidance on that). Will send you draft statement we intended to submit with n244.

 

Interesting that no-one at the court seemed to know what happens after warrant of eviction date expires.

[Ell-enn]

OK, I'll draft up a letter and post on here - hopefully in the next half hour (if I don't get interrupted at work!). You will need to send a copy of your budget sheet with it. If you could get it to the post office tonight it will be delivered tomorrow morning (special delivery).

 

Are you both in work now?

 

How much are you able to offer towards the arrears each month ?

[lanesra14]

I'm in full time employment, and other half now self employed.

 

Original monthly payment on agreement was £460, last court order we agreed to pay £630 to clear arrears. Cannot realistically afford to offer more than extra £50 , making a total monthly payment offer of £680pm.

[Ell-enn]

It's best not to stretch yourself - maybe £650 would be a better offer (i.e. £190 towards the arrears) ?

[Ell-enn]

Letter affixed. Don't forget to keep a copy of the letter and budget sheet and send by special delivery. Check on the royalmailwebsite in a few days time to print off the signature receipt and keep that safe with the copy letter.

 

When can you next make a payment?

LANESRA LETTER.doc