Eviction Friday 9th march please help

[Grandprix]

We recieved a notice of eviction, it's the 3rd one,

I went to CAB who gave me some great advice, opened up a new bank account, sold a car,stopped a load of useless direct debits, and rewrote a new family budget.

The guy at CAB gave me a load of info and armed with this we appealed for the eviction to be suspended.

On the day (last Fri) I met with a representative from mortgage company, and he appeared to be impressed with the proposal we had put together.

Infront of the judge was a different matter,

In summing up, the judge said " although I am satisfied Mr And Mrs X can afford the proposed payments, I feel that judging by the past history I don't think they will make them. So Appeal dismissed"

I asked if i could appeal and he said yes but I wouldn't bother!

Leaving the court the guy from the mortgage company was shocked and he said to us, go straight back to CAB, you've got a week.

Now here's where the problem lies, I can't get hold of CAB and i'm aware of time ticking.

What to do next please

How do I appeal.

We are prepared to make payments to court, or even turn up on a monthly basis to show we have paid mortgage.

We feel that the judge didn't make his decision on fact but on a "feeling" he had, Not being funny but the judge shouldn't be allowed to say what he thinks might or might not happen, I know our record is poor but so is everyone elses who's house is being repossessed. And We are definately in a much stronger financial position now

Any advise please?

[Lea_HTH]

Clarify: you state the judge said 'appeal dismissed' - was this a hearing before a Circuit Judge to appeal a decision by a District Judge, or was it a stay application and what the judge actually said was 'application dismissed'?

 

You need to be clear.

[Grandprix]

Application dismissed, sorry, it was a district judge.

I put in an application to suspend warrant

Thanks

[Lea_HTH]

You'll need form N161 to make an appeal to a Circuit Judge. You can obtain that from the court - fill it in with all details that you intend to rely on for your appeal (usually appeals are because an error of fact or law was made). File the form with court and pay whatever fee, if any, is required, and you should be given a hearing date.

 

From the little information you have provided, it would appear the Judge made a finding of fact based on what was before him - i.e. that this was your third appearance and the case history suggested to him that you had repeatedly failed to keep to agreements made to pay. On that basis he was right to find in favour of the claimant.

 

However, that doesn't mean that you should not appeal as, if you have the funds now to make payments, there is absolutely no valid reason for not giving you one final chance.

[Grandprix]

Thank you.

I've been told that to appeal before a circuit judge i need a barrister to represent me can you tell me if this is true?

[sillygirl1]

No, not in a repossession case.

[Lea_HTH]

Nope, that person was talking nonsense. You're just a litigant in person if you appear for yourself.

 

What area of the country are you in?

[Grandprix]

Thankxs guys

 

Yorkshire

,

Just a bit concerned that if we try to appeal without enough knowledge the morgage companys solicitor will baffle us with legal jargon

[Lea_HTH]

You just need to keep it simple.

 

What did you say in your stay application? Did you provide proof of your work and ability to pay? Was your offer of repayment able to clear the arrears within the remaining term of the loan?

 

I was hoping you might have been in the M25/London area - I would have been able to provide you with a duty adviser to assist you in court if you were.

[sillygirl1]

No, you just go to the court and ask for an emergency hearing, show the figures and how you have got rid of a lot of the underlying issues, they can't use legal jargon against you in an emergency hearing.

 

Get this going now and you can survive for another day.... if not they will chase you for even more money once repossession happens. The more you fight it the more you have to hit them over the head with later on.

[Grandprix]

Yes i took wage slips, bank statements, proof that we had sold the car, also a copy of direct debits set up on the account, The judge didn't dispute the ability to pay, he said that he was satisfied we could afford it,

He wasn't satisfied that we would pay.

He also wouldn't listen to why we had missed payments

We still have 250 months remaining and we used Norden to show that the arrears would be quite easily be cleared within the remaining term

[Lea_HTH]

Given what you have written above, I'd say that you stand a reasonable chance of success if you appeal.

[Lea_HTH]

Can I just ask what your payment history is like? The Judge must have had some valid reason for denying your stay appeal.

 

How many months were you in arrears when you were first taken to court? How long after that first appearance was it until you failed to pay? How quickly did you return to court with a stay application? How long after that stay application did it take for you to fail to pay? How long after the success of that stay application did it take for this latest warrant to be issued?

 

How much are the arrears? How much equity, if any, is there in the property?

Edited March 5, 2012 by Lea_HTH
added two questions

[Grandprix]

Payment history is awful, hubby badly injured in car accident and unable to work, now back working full time and earning good wage. I was out of work at university for 3 of the last 5 years. Temped and part time work. Now got full time job.

Last application was exactly a year ago and no we didn't stick to agreement.

[Lea_HTH]

And the equity?

[Lea_HTH]

Your biggest difficulty is going to be persuading the CJ that things have changed significantly since the last time you were in court, and that you are not only in a position to pay, but WILL pay. The DJ seemed to think, based on your history, that you just won't make payment, and the CJ may well agree with that. However, it would be usual, if you can show affordability, for the CJ to at least give you one final chance to prove it.

 

If you do manage to get a further opportunity, you should probably treat it as your final chance.

[Grandprix]

Thank you for your advice. So first thing tomorrow i go to court and fill in an n161?

Is it complicated?

Any advice on what to put would be gratefully recieved

Thank you

[Lea_HTH]

No, the forms aren't complicated, you will probably simply be using the information you used before and stating that your ground for appeal is that the DJ stated he felt you could pay, but that you would not - i.e. a fault in the finding of fact. Try not to get too technical about it - this is simply the CJ looking over the DJ's decision and seeing if it was just and fair given the exact circumstances.

 

Whether you have equity in your property is a factor in whether or not your appeal will be successful, hence asking TWICE for that information. You don't have to give it, if you don't want to - but I will tell you that if the property is in negative equity you are less likely to succeed at appeal as the lender's money is at risk.

[Grandprix]

Diffuclt to tell about equity, not had house valued. Probably break even at this point. If it was up for a quick sale though it may be negative. House prices are difficult to judge because all houses on this street are different, from 2 bed terraces to 5 bed detatched

[Lea_HTH]

Just bear that factor in mind if you are in negative equity, or likely to be. The other side will almost certainly have some indication of prices in the area and will tell the judge if they believe there is negative equity - as well as if you have other loans secured on the property.

 

Good luck in any case, and let us know what happens - at the very least the CJ should give you a final opportunity to show you will pay.