Mortgage company are trying to get possession of my home by the court.

[Fielder]

Hi Dodgeball

Would you suggest a solicitor or an accountant?

[Peterbard]

Hi Dodgeball

Would you suggest a solicitor or an accountant?

 

Solicitor accustomed to working with credit. Do you have the agreement ?

[Fielder]

Yes

[Peterbard]

I should commence challenging the default charges as said previously, you can also question their entitlement to charge contractual interest on them and ask where the term in the agreement is that permits them to so do. ( I suspect that even if there was one ir would be unfair)

[Fielder]

Ok, sounds like a good way forward. I hope there is a letter template for challenging the contractual interest.

I'm not very good at formal letters.

Thank you for your advice

[citizenB]

No#i don't think it will be in there, BCOB generally deal with banking practice, but if someone could indicate the section, I would certainly be interested in seeing it, as I presume would the OP.

 

If the charges are unfair that is a different mater of course

 

DB, was this in response to my post.. I didn't say BCOBS, but MCOBS

[Peterbard]

DB, was this in response to my post.. I didn't say BCOBS, but MCOBS

 

So you did, should have gone to sspecsavers. sorry

 

Even so I don#t see anything which claims to restrict enforcement when default charges are included within the default sum on the claim.

 

Is this a first charge mortgage ?

[Fielder]

Yes, if you mean the one and only mortgage.

Could you please explain what you mean by 'claims to restrict enforcement'

Thanks

[Peterbard]

Yes, if you mean the one and only mortgage.

Could you please explain what you mean by 'claims to restrict enforcement'

Thanks

 

This should be regulated mortgage and the MCOB should apply, there is quite a bit of stuff in there about charges. It was inferred earlier that a claim cannot succeed if the default charges are the only reason that it is being made. I wanted to see proof of this.

 

I believe that the default charges should be challenged however for not being lawful in the first place.

[sequenci]

I know under the Law of Property Act 1925 a lender cannot bring a repossession action unless it's three months in arrears - or the interest is two months in arrears. Whether or not this will be useful here I guess could remain to be seen; here's the section:

 

103 Regulation of exercise of power of sale.E+W.A mortgagee shall not exercise the power of sale conferred by this Act unless and until—

(i)Notice requiring payment of the mortgage money has been served on the mortgagor or one of two or more mortgagors, and default has been made in payment of the mortgage money, or of part thereof, for three months after such service; or .

(ii)Some interest under the mortgage is in arrear and unpaid for two months after becoming due; or .

(iii)There has been a breach of some provision contained in the mortgage deed or in this Act, or in an enactment replaced by this Act, and on the part of the mortgagor, or of some person concurring in making the mortgage, to be observed or performed, other than and besides a covenant for payment of the mortgage money or interest thereon.

[Fielder]

I don't think this applies in my case as they have a suspended repossession order and I have failed to keep to that.

 

 

Only for last month and this month, but they are going ahead with it.

[Ell-enn]

Hi, are you able to offer an amount towards the arrears in addition to the normal monthly payment going forward? that is what you will have to do if you have to go to court to get an eviction stopped. The charges are a separate matter to the arrears, the judge will primarily concerned with whether you can afford the monthly payment and something towards the arrears. As it is an interest only mortgage your monthly payment is based on the amount outstanding - if you pay off the arrears the outstanding amount of your mortgage will reduce.

 

Regarding the charges, you need to write to the lender asking for the charges to be removed from your account. As they are added to the outstanding balance, any charges they remove will not reduce your arrears, only the amount of the outstanding mortgage. If the lender refuses to remove charges you can escalate your case to the FOS.

[Fielder]

I used the Financial Ombudsman Service to get a refund for unfair charges from Blemain.

I calculated charges and added on interest came to about £7,000. Fos got me £2,000.

I excepted, reluctantly, as I thought they were correct and I was wrong.

Now I'm not so sure.

Any chance I can get more of the charges returned? Or have I signed them away?

[Fielder]

I am paying mortgage amount and an amount off the arrears. But, I've not paid last month and this yet.

The problem is the charges have increased the mortgage amount and consequently the monthly amount, because the interest is calculated on the total.

 

I am confused and not sure what to present at the court.

[Ell-enn]

OK, have they sent you a letter stating your monthly payment has changed? has it changed since the last time you paid?

[Peterbard]

Just reading through the MCOB and Ii seems to me that you are correct, they should not be adding your charges to the principle sum.

 

13.5.1 Statement of charges

 

Where an account is in arrears, and the payment shortfall or mortgage shortfall debt is attracting charges, a firm must provide the customer with a regular written statement (at least once a quarter) of the payments due, the actual payment shortfall, the charges incurred and the debt.

 

Have you received an itemized statement like the one prescribed above. The charges would have to include any interest generated by them.

 

In addition to this the fact that the charge itself would increase the amount due when the principle is paid at the end of its term, and would surely be an unfair penalty.

 

I think that the charges should accrue in a different pot than the principle as they do in CCA agreements, reading between the lines.

[Fielder]

They send me letters showing the total amount due on repayment of the mortgage which includes all the charges and the adjustment as the interest changes. Just a total sum and the amount due each month

[Fielder]

The charges are not listed separately.

Also, the increased figure of the mortgage, by which they are calculating the monthly payment, which includes the charges and the arrears. Is different and much more than the sum of mortgage plus missed payments plus charges.

 

And no, the payment has been the same since January 2013.

 

My account has not been attracting charges because I have, until recently, been making regular payments and something towards the arrears.

Edited June 24, 2013 by Fielder

[Ell-enn]

The main thing is to protect the roof over your head first - then tackle the charges. When can you make the next payment?

[Fielder]

The main thing is to protect the roof over your head first - then tackle the charges. When can you make the next payment?

I plan to pay this months today and what's outstanding from last month on Thursday. So I'll be upto date then. With recent underpayments anyway.

[sequenci]

if you've breached the payment arrangement you may wish to consider applying to re-suspend the SPO, you can do this by completing a form called n244, the fee *should* be £40 (some courts still try and charge £80)

[Peterbard]

A demand of a breakdown of the arrears would be useful in finding just how much is owed on the contract and how much is due to charges and interest on charges.

Th OP is entitled under the MCOB to receive this information and I think this would be useful information to present to the court should there be a hearing.

Also I would request an explanation of how the interest on these charges is calculated and the effect it has on the principle.

[Fielder]

Today I have received the eviction date. It is in twenty days.

If I can get the money I would like to pay all the arrears before then. I cannot pay the total amount they are asking for and anyway that figure includes charges.

How do I total the amount of arrears, when the charges and the interest on the charges has been added?

 

I can calculate my underpayments, excluding charges. Would this figure be the one to use?

The charges can be dealt with later on. I just want to pay what I have to, to stop the eviction.

[Fielder]

I do have a breakdown of the charges and can calculate them separately from the interest on the principle sum.

 

If I calculate the amount the monthly payment on the amount of the principal at the interest rate charged at the time.

Excluding the charges and the interest on the charges. Would that be acceptable?

 

I can write to mortgage company and explain what I have done.

[Peterbard]

I think you really need professional advice with this in order to get the re-possession stopped.