!!Just joined and desperate for possession order advice !!

[Cazz2269]

Hi all - I discovered your forum today and having read an exchange between "macfamily and El-llen" I realised that there may be hope for my situation after all. Its a bit of a long story, but I'll try my best to keep it short.

 

In 2004 my partner and I decided to buy a house. I already owned my own property and had to remortgage to raise my share of the deposit. When doing this, we were advised that even though I had a clear credit record, I could not have a remortgage and mortgage application going through at the same time. This meant that the mortgage application would have to be in the sole name of my partner (now ex) and the house was in his sole name. It was our intention to remortgage after a couple of years so as a temporary measure (and to protect my interest in the house) I got my solicitors to draw up a Deed of Trust - which stated that we each owned the property 50/50.

 

The agreement was that the mortgage payments would be split 50/50 - and this worked out for a while. Until he began to experience financial difficulties (he was self employed) and in no time, his share of the mortgage payments began to build up. To bail us out, I got a loan. Things got back on track and then he got a secured loan against the house. I agreed to this and he was solely responsible for the payments.

 

Without dragging this story out too long - in 2009, after I bailed us out on more than one occasion, incurring defaults along the way, we broke up. As a result, no one is willing to give me a mortgage.

 

My ex-partner acknowledged that if we were to sell the property, I would be entitled to the proceeds so he agreed to give me his half share of the house. This did not come cheap as by that time, he had left arrears of £15k on the main mortgage and approximately £9k on the secured loan.

 

I contacted Kensington and explained the situation and that I would want to stay in the property with my 3 year old daughter. They said as long as the mortgage payments continued they wouldn't have a problem. However, as my ex didn't maintain the payments agains the loan, in May 2009 Kensington took him to court seeking possession.

 

We went to court and after explaining that I had a Deed of Trust and was paying the mortgage, the court didn't grant possession. An order was made that my ex pay £4k by a set date - which he didn't. My solicitors and I contacted Kensington to confirm that as my ex hadn't paid the loan, I would be willing to pay in full (at that time it was £9,061) to avoid it going back to court. Kensingtons solicitors never responded to the letters. When I contacted them they informed me they had not received instructions from Kensington!! So they just basically ignored the letters.

 

Kensington are aware I've solely been responsible for making payments against the mortgage in full, in addition, I was making additional payments of £100 but as they add a £50 charge each month plus interest fees, the £100 doesn't go very far. I have made every attempt to get this matter resolved direct with Kensington but they seem to make the rules up and create obstacles as we go along. I offered to pay the loan in full and come to an arrangement with the arrears on the mortgage but they will not take instructions from me - which I understand. As I can't get a mortgage, I suggested that with the consent of my ex that they add my name to the mortgage and after six months, I would take his name off. Even though I was paying on time for over a year, the specialist team said it would be fine but their under writers said I didn't meet their criteria??

 

When questioned, Kensington said they could not accept payment from me for the loan as I was a third party. But surprisingly they didn't have an answer when I said but this was the same case with the mortgage and they had been crediting my payments to that account!!

 

In February of 2012, Kensington took my ex back to court (his name is still on the mortgage). As he didn't turn up a 56 day possession order was granted. However by that time, they were saying that the amount due had increased to £14k and in addition they added the arrears from the main mortgage which had risen to £18k what with the added fees / interest added.

 

For me, selling is not an option as either way , the money would come from my pocket.

 

My question is: I've been making the payments and Kensington have been accepting payments against the mortgage for nearly three years. I have been offering to pay the loan in full since May of 2009 (I have evidence of this) and they have refused. After all this time they are now saying they WILL accept payment but will need a letter from the person where the money is coming from and proof (this was outlined in Macfamily's query) -not a problem but I don't understand why they have waited nearly three years to say this and have added an ADDITIONAL £5k to the amount whilst they pondered.

 

Oh and in addition, they say they will only accept the payment if I pay it into my ex's account and he pays. Considering how much the man left me in debt, the last place I'd put money is in his account.[As for that debt - thats another question for the Forum but at this time my home is more important].

 

Can anyone tell me if Kensington can lawfully do this and what my rights are as a third party??

[freakyleaky]

Hi Cazz and welcome.

I have asked for you thread to be moved to the correct forum where you will get the best help.

[rebel11]

Thread has been moved to the correct forum.

[Cazz2269]

Thank you - I reaslied after I had posted that it probably was in the wrong place.

[Cazz2269]

Thank you for asking for my thread to be moved - should I be doing something to attract someone to give me advice? Just that I've noticed that others have since posted threads and have received advice .....does that mean that my case is a no hoper and Kensington have won ;-(

[freakyleaky]

Hi Cazz. No it doesn't mean that at all. Some of the regulars who will be able to help may not be around at the moment with holidays etc or busy with other on going problems.

I will give Ellen a shout.

I am sure someone will be along to help soon.

[citizenB]

Site team are aware - those that are most likely to be able to offer advice will usually be around later in the day because of their day jobs

[freakyleaky]

Thanks for confirmation CB.

[citizenB]

Can you clarify, the possession order is against your ex?

 

Kensington have been accepting payments from you for some while and out of an account that your ex has no part of?

 

They have said they will/can not accept money from a 3rd party ie you to settle the loan. Have now changed their minds but have put condiitons on the settlement, that would benefit your ex?

 

I wonder if you could make a case for them to return all monies paid by you over these past 3 years ?

[Cazz2269]

Hi Citizen B - thank you for responding to my message.

 

1. Yes the possession is against my ex as the mortgage is in his sole name.

2. I've been making the payments direct from my bank acount to Kensington (which they're aware of).

3. They said they will accept the payment to settle the loan but they would want a letter and bank statements of proof of where the money is coming from (which is not a problem). As much as would prefer not to pay the money into my ex's account - if that what it takes to clear then I guess I have no choich. My gripe is they have used delaying tactics since 2009 to say this - which has resulted in an additional £5k being added to the amount to the redeption figure. When we went to court in Feb 2012, we offered to pay then and they didn't say anything about conditions on settling the loan.

 

4. I could prove I've paid this money to the account - but I'm not asking for it to be returned as I want to say in the house with my daughter.

 

5. The £25k I have available would clear the arrears and the loan (if they don't add the £5k). I just can't see how they can justify ignorning letters from my solicitors, emails from me offering to pay the loan and as I said above, since 2009, then add this amount to the loan.

[Lea_HTH]

I was asked to look at your thread.

 

Your specific difficulty is obviously that you are not party to the loans secured on the house, even though you hold a deed of trust for 50% of the property. The mortgagee, therefore, does not have to deal with you, does not have to respond to your letters, or offers of payment, and in not doing so, is doing absolutely nothing wrong.

 

Do you work? You make reference to bailing your ex out, presumably you took out loans if there are defaults involved? Do you still owe money elsewhere? Is this why you cannot re-mortgage? Because the most sensible thing would be (if you had good credit) to obtain a mortgage from elsewhere and buy your ex out - the money you borrowed would be paid over to his solicitor, as if in an ordinary sale, and would then be used to discharge all HIS loans against the house, leaving it free and clear in your name, with a new mortgage, also in your name.

 

I would strongly suggest that you do not, under any circumstances, put money in your ex's account. If the mortgagee is reluctant to take it from you, then instruct a solicitor - the solicitor will carry out any relevant money laundering checks that are required and can satisfy the mortgagee's requirement on that score, and can safely ensure that the money to discharge the loan is paid to Kensington, and that they remove any charge on the property.

 

Other than that - what are you hoping to achieve here? I realise that you want to keep the house, but without the means to re-mortgage, that might not be possible. Bottom line is Kensington don't have to deal with you - you are not party to the contract; they are not obligated by any of the agreements or concessions they may have made to you, but would be if they made those agreements/concessions to the mortgagor.

[Cazz2269]

Thanks Lea - I do work full time. And the loans I had taken out were to discharge arrears on the mortgage which had been incurred by my ex (when we were still together) otherwise the house would have been repossessed. Financially things got really tough. I had approached my bank to try and reduce payments for a couple of months but they were unwilling to assist so I had no option but to go to a debt management company who advised me to make reduced payments - which has resulted in me having the defaults against my name. I have maintained payments ever since 2009 and as a result, although I've got defaults, on experian my credit score is excellent (999) - so technically although my credit score is good - I still have the defaults. And not surprisingly, there isn't a bank (yet) that is willing to take into account that Ive been paying the mortgage on the house for over three years so I can afford the payments.

 

As he owes me so much, my ex already signed a witness statement confirming that he has no beneficial interest in the property. If I were to sell, then the proceeds would belong to me. But in reality I would not be able to afford to buy a house similar to what I've got as at this time, I would be looking to just discharge the mortgage amount of £232k but the property is worth approx £285-290k.

 

My solicitors contacted Kensingtons solicitors recently to say that we would be willing to clear the loan but they came back and said they wouldn't take instructions from me (which ties in what you've said above). But I'll see if my ex can speak to them to make the proposal. Thank you so much for your advice - its really appreciated - I'll let you know how I get on.

[Lea_HTH]

Good luck. Sorry it couldn't be better news.

 

If your ex is willing to do the negotiation on your part (since the money is coming from you), then with any luck there might be some agreement down the line.

[Cazz2269]

I hope so. I'll keep you posted.

[Cazz2269]

Hi Lea

 

Since my last email I've been trying to get this matter resolved. I've managed to partially settle my defaults. My ex has been liaising with Kensington with a view to resolving this matter i.e. settling the secured loan and coming to an arrangement on the mortgage. Just one problem. During discussions, Kensington has decided to proceed and enforce the repossession order!! They still seem to be making up their rules as they go along i.e. first they needed a letter from whoever is making the payment for the loan, now they need to speak to the person direct etc. For some reason, they seem possessed in ensuring that they money is not coming from me. This is with them knowing that I have a deed of trust and transfer confirming my ex has transferred his share to me.

 

As this time, an application has been made to the court seeking possession. I understand that my ex can make an application to stop this. Do you know what it is and what we need to say? Now that my credit is getting in order, I just need a little more time to obtain a mortgage in my name. My ex is willing to contact Kensington to suggest making a lump sum payment against the arrears and increased payments thereafter.

 

I need help urgently on this one!!!!

[Lea_HTH]

Your ex needs to fill in an N244 form, which he can obtain online or by going to the court office to pick one up. It is a simple form - but he needs to explain in a supporting statement precisely why he requires a stay on the possession order - if he is making a lump sum payment plus reasonable payments towards the arrears (reasonable is a combination of affordable and getting the arrears cleared before the end of the term of the mortgage), then he stands a good chance of getting the eviction stayed - judges tend not to want to put people on the streets if they can make reasonable payments.

 

If you've had defaults it'll probably take you a couple of years or so to raise your credit rating again - so your ex's plan to pay has to be a realistic one (even if it ends up that it is actually you making the repayments).

[Cazz2269]

Thanks Lea - I'll make the necessary arrangements. Kensington have all relevant paperwork that states that I do have a beneficial interest in the property but they refuse to acknowledge it. I'm not sure what the court would favour, as basically, the only reason why I'm in this position is because he got us into this mess and then walked away. Some say I should do the same, but having invested a lot of money and my children are settled I don't want to leave.

 

I can pay the mortgage as well as at least an additional £200 towards the arrears but do you think a court would take into account that he doesn't want to see his daughter be made homeless as a valid reason? Kensington seemed to think that this would not count as a valid reason?

 

I really only need some time until I can get a mortgage. As for my credit rating - this is the biggest mystery, as I have an excellent credit rating - even though I have x4 defaults! I've checked Experian and they tell me my report and credit score is correct. Experian put it down to the fact that since my payments defaulted, I continued to make regular payments which helped my credit score to increase. Just a shame that no bank is willing to look beyond or the reasons behind the defaults. I'm just worried and more concerned that this matter has come this far. Kensington are aware of the situation, i.e. I have a Deed of Trust, a Deed of Transfer and my ex's confirmation that I have been making payments for the mortgage. I'm just worried that whoever hears the case will not take ths into account.

[Lea_HTH]

Your beneficial interest in the property is secure - in other words, if possession was granted and the property sold, the mortgagee would only get the percentage of the property that your ex has (i.e. 50% despite your later agreement with him). It might make sense for him (the ex) to inform the mortgagee of this and tell them that they are likely to get all of their money if they deal with you and perhaps add you to the mortgage account - they won't remove him whilst there are arrears and probably won't allow you to take the account on by yourself either (as you've found).

 

The court will only take into account ability to pay - HIS ability, since they (the court) cannot compel you to make payments. If he can show this ability (even if the money comes via you) then there is no reason why the court would not allow him to pay. If he chooses to tell the court that he wants to ensure his kid has a roof, then he can - it's actually his (and your) responsibility to ensure that, so the court won't be impressed one way or the other.

 

If you have an excellent credit rating then I cannot imagine why you haven't applied for a mortgage.

[Cazz2269]

Hi Lea - I can't thank you enough for the advice you given to me to date. As stated above, I appreicate that I'm not their client but Kensington seem to only work in black and white and anything that comes outside of the remit of their rules - completely throws them. The bottom line is that if Kensington do agree to enter into an agreement with my ex - I would not be silly enough to put the monthly payments into his account.....thats partially how I got into this mess in the first place. I just don't understand why given the circumstances they cant accept payments from me - whether they want to face facts or not, I DO have a beneficial interest in the property and me paying the mortgage (until such time as I obtain my own one) will not change any of this. But this is something I could be mulling over for the next 10,15 or 20 years! As I've discovered the hard way that our british financial system does not always deal with logic.

 

Talking about logic.....when we went to court back in February, I accepted the fact that getting a mortgage was my only way out of this mess. I've spoken to at least 5 mortgage advisers, who all look at my finances, have been told the current position with the situation with Kensington and that I'm paying the mortgage (which I can prove), they look at my excellent credit rating, (even though I have defaults) and they all say the same thing..... "with your credit rating I don't see why you shouldn't be able to get a mortgage...but I'm not sure why you have such a good credit rating with your defaults". But when my application goes through "the system" I'm told that even though my credit rating is excellent, the "system stops it " because of the defaults.

 

I didn't have the funds to settle everything in full so I was in a catch 22. Either clear the arrears on the mortgage but don't clear the defaults and remain with Kensington changing their rules daily. Or clear the defaults and try and get a mortgage. So I opted to clear the defaults but due to the amount could only partially settle them. Not ideal I know. As this happened a couple of weeks ago, I'm waiting for my credit file to be updated so I can start banging on doors again.

 

Once again, thank you for your advice (I've been promoting this site to everyone I know!) and I'll keep you posted.

[Lea_HTH]

It's a difficult situation for you, obviously, but the bottom line is that your interest is in the property itself, and, as stated before, you're not a party to the contract with Kensington. So, whilst I can see how frustrating it must be for you, Kensington aren't in the wrong...they're being short-sighted and a bit stupid because you're the one paying the mortgage, but being short-sighted and a bit stupid isn't against the law and unfortunately there is nothing really that you can do to force them to deal with you.

 

I have a simple solution for dealing with ongoing payments: a joint account. My suggestion would be that you do not deposit the money in the account until you know the payment is going to leave (so your ex can't turn up and remove the money before the mortgage is paid). Don't keep any other money in the account besides what you transfer immediately before the mortgage payment is due. That way, you maintain control of the mortgage payments, but Kensington are receiving it from your ex's account - which just so happens to be in your name too, which means you can transfer money from your own account and pay the mortgage as and when necessary without them thinking that the money is coming from a third party. It's a bit laborious, but ultimately it leaves you in control and ensures your ex doesn't get his hands on any more of your money (which seemed to be a concern). It would, however, tie you financially in terms of your credit, to your ex - but that may be a small pill to swallow in respect of being able to stay in your house with the knowledge that you can ensure payments are made.

 

I expect your ex will be able to persuade a judge that he should be allowed to make a payment towards the arrears, plus the CMI - if you attend court too, you can point out to the judge that whilst you are not party to the mortgage contract you will ensure those payments are made...the judge just cannot order you to make the payment nor order the mortgagee to accept payment from you. My view is that a joint bank account solves that issue.