We lost - repo pending :-(

[Animal]

Hi Guys,

Finally had our hearing last week, unfortunately we lost :-( Solicitors sprung a new legal argument a few days before the hearing and I struggled to understand it and it really only became clear after the Judge's summing up. At least we gave them a scare :-)

We have been given extra to time appeal as the argument is open to interpretation. This is under consideration.

What we have to deal with is the claimant has been given a repossession order, and we have been given extra time to ask for the repo order to be suspended. I assume this is done via N244?

The contract I have recently signed is for 3 months. It is expected to continue beyond this, but there is no guarantee. I am offering a norgen agreement to pay out the arrears over nearly 10 years. The gross income from the contract is significant, however that is paid to my company. My nett income is less than half this, albeit dividends are paid 2-4 times per year.

My nett income is sufficient to cover our current outgoings plus arrears and interest on arrears over the remaining ~10 years of the mortgage.

The reason for our arrears (family illness) has gone away, so it's now full steam ahead, subject to keeping our home :-)

Questions I have:
1. Will the 3 month contract be sufficient for the Court to suspend the repo?

2. Will making an up front lump sum toward arrears make any difference?

3. Will mentioning that I tried to settle the repo proceedings earlier in the year, however the Claimant would only accept on condition that I agreed never to bring up s140A in relation to the agreement. They were even prepared to write off the arrears...

4. Will mentioning the delays caused by the Claimant starting the action in a court in a different county and their repeated failures to comply with court orders and information requests make any difference? Not to mention springing the new legal argument on me a few days before the hearing.

5. The Claimant swore under oath that some charges had been refunded. They also swore that the monthly payment was nearly 100 more than it should be. I have the documentation to show this monthly payment is wrong and that this payment has been deducted (and continues to be deducted) for the last 18 months or so. Is this the right time to bring this up?

6. Similarly to (5) for some arrears fees.

7. In relation to the legal fees, the Judge said I need to make an 'Application for Account'. How do I go about this? I assume it is an application to the Court?

8. Is the fact that I made an offer prior to the hearing and the various antics of the Claimant (see q4) sufficient to make an argument that costs shouldn't be applied? Would the Claimant's requirement that I settle something (ie the s140A argument) beyond the repossession proceedings be deemed unreasonable?

Thanks in anticipation...

ps for those who have mortgages prior to Oct 2004, S140A of CCA does apply to these mortgages (and indeed almost all credit agreements CCA regulated or not). There is a get out of jail free for the lender in the transitional provisions, so if you want to go down this route you need to check these carefully...

[TUTTSI]

Re: We lost - repo pending :-(

Well done for holding your own so far. I am myself not sure of the next stage for you but I believe a N244 might me the form needed. One of the others hopefully will concur on this point.

The norgan case should see you through the 10 years remaining if you so wish- BUT if you fail to pay your mortgage + agreed arrears payment on or before the due date they dont need to take you back to court on a suspended possession mortgage, it would be automatic repossession.

We had our over 4 years and o'boy was we pleased when we caught up and did not owe them anything other than the monthly comittment. But we still have to ensure that our monthly commitment is paid on time as just 1 day out they will just go for the possession. My hubby had a few emergency eye ops which rendered him not able to work for almost 4 months. We got through this thankfully,

If you have not already done so I would complete an income and expenditure which you will find here http://www.legalbeagles.info/forums/...ad.php?t=19592
This will show the Judge that you can afford the mortgage and the arrears that you propose. I would take the arrears if possible over a shorter time if at all possible. Any evidences that will support your claim of illness and that you are all well now would also help. Also, if you have any dependants living at home ie young children, elderly parents etc....

Can you post up this new argument and perhaps some of our more legal people can help you with this argument to see what this means not just for you but for others in a similar position.

Who is your mortgage with?

[SpringerSpaniel]

Re: We lost - repo pending :-(

Q1 You have to make the best case you can, both re your finances, and re the issues raised lower in your list of questions.

Q2 Yes, the lump sum upfront should help.

[Animal]

Re: We lost - repo pending :-(

Any evidences that will support your claim of illness and that you are all well now would also help.

It wasn't me that was ill, my wife and MIL. MIL died of cancer (diagnosed in 2009) earlier this year. Wife is more or less back to full health, though she has some possible cancer related symptoms which have resulted in her being reffered to a consultant... So far there is no indications of cancer in the tests... so it's unlikely that she has it.

Can you post up this new argument and perhaps some of our more legal people can help you with this argument to see what this means not just for you but for others in a similar position.

I will, with more detail, but at a later date. I have a lot to do at this moment in time...

Briefly, there's a section in the transitional provisions which is open to interpretation... hence why we have been given extra time to seek advice on appeal.

It revolves around the fact the the Claimant previously sought repo (a separate issue) prior to 2008 and at that hearing I had the opportunity to bring up the defence that I had submitted. According to their interpretation of the transitional provisions this fixed the date under which the legislation that had to be applied was what was in force at that time (i.e. prior to s140A). Therefore in this particular instance s140A didn't apply. It doesn't mean that s140A doesn't apply to my mortgage, just these proceedings. The Judge made it clear that she wasn't satisfied, but as I had nothing to counter it she was basically compelled to find in favour of Claimant.

[Sparkie1723]

Re: We lost - repo pending :-(

I copied this from one of your posts and this to me is VERY interesting

3. Will mentioning that I tried to settle the repo proceedings earlier in the year, however the Claimant would only accept on condition that I agreed never to bring up s140A in relation to the agreement. They were even prepared to write off the arrears...

Could you tell us who your mortgage is with?....... Is it a first charge morgage or a second charge secured loan/mortgage??

Sparkie .

[Animal]

Re: We lost - repo pending :-(

I copied this from one of your posts and this to me is VERY interesting

3. Will mentioning that I tried to settle the repo proceedings earlier in the year, however the Claimant would only accept on condition that I agreed never to bring up s140A in relation to the agreement. They were even prepared to write off the arrears...

Could you tell us who your mortgage is with?....... Is it a first charge morgage or a second charge secured loan/mortgage??

Sparkie .

It is a first charge mortgage prior to Oct 2004. The lender is B i r m i n g h a m M i d s h i r e s.

[Sparkie1723]

Re: We lost - repo pending :-(

It is a first charge mortgage prior to Oct 2004. The lender is B i r m i n g h a m M i d s h i r e s.

Birmingham Midshires were a subsidiary of the Bank Of Scotland who have been bought by the Lloyds Banking Group.........I think that they are a little bit worried that they have not told you what has gone on with your morgage and that it had been assigned /sold/taken over by Lloyds.

Firstly I would send Birminham and Midshires a SDAR to find out exactly what has gone on. There are questions to asked and answers to be given about all this ........metinks there's some funny busines gone on...............but then I am such a suspicious old so & so

Sparkie

[Gorang]

Re: We lost - repo pending :-(

Birmingham Midshires were a subsidiary of the Bank Of Scotland who have been bought by the Lloyds Banking Group.........I think that they are a little bit worried that they have not told you what has gone on with your morgage and that it had been assigned /sold/taken over by Lloyds.

Firstly I would send Birminham and Midshires a SDAR to find out exactly what has gone on. There are questions to asked and answers to be given about all this ........metinks there's some funny busines gone on...............but then I am such a suspicious old so & so

Sparkie

I agree with sparkie here

Sumit smells here

(but I am also a suspicious bugga lol)

Get a SAR in the post asap, and lets see what we have to work with

[Animal]

Re: We lost - repo pending :-(

Birmingham Midshires were a subsidiary of the Bank Of Scotland who have been bought by the Lloyds Banking Group.........I think that they are a little bit worried that they have not told you what has gone on with your morgage and that it had been assigned /sold/taken over by Lloyds.

Firstly I would send Birminham and Midshires a SDAR to find out exactly what has gone on. There are questions to asked and answers to be given about all this ........metinks there's some funny busines gone on...............but then I am such a suspicious old so & so

Sparkie

The Claimant was B od S trading as BM. Has this happened recently? I obtained a SAR around mid 2010.

[TUTTSI]

Re: We lost - repo pending :-(

This SAR covers a hell of a lot of stuff, it depends what you included on your SAR in 2010. Did you get the proof of the assignment? and you now need the FULL statement showing all the charges and if they have refunded or now.

You can adjust this SAR by adding and taking away anything you think is relevant,


Dear Sirs,

Account Number: (all account nos, or none if it is unknown)

As per the section 7 of the Data Protection Act 1998, "Subject Access Request", I hereby request that you supply me with any and all historical data in your possession which, in any way appertains to me, including (but not exhaustively) a true copy of the original signed executed agreement; statements of account; duplicate statements and/or print outs of all account transactions; all internal and external correspondence sent or received by you including memo’s, logs, notes, screen prints and transcripts; notes of manual interventions such as telephone attendants' notes, internal and external emails; any other information held on any/all types of media in any relevant filing system (microfiche included). I should receive your full compliance within a maximum of 40 days of this letter being recorded as delivered by Royal Mail.

The information requested, whilst not exhaustive is as follows:

• Full copies of all contracts which you believe exist between ourselves and your
organisation, including copies of any documents you hold in support of same.
• Full statements of all accounts from commencement of the accounts. This is to include all information held especially the summary of case notes and Mortgage Statements.
• Details of the identity of any individuals or organisations who have provided you with our personal information together with copies of any letters of instruction provided by them, or any contracts entered into between yourselves and the third party, and the relevant dates to which those contracts related.
• Copies of all documents which include any of our personal information including copies of any contracts or invoices, emails or computer records containing our personal information, or any records which pertain to this information.
• Full details and copies of any documents upon which you relied when you have provided my personal or financial information to any individual, organisation or third party.
• Full copies or transcripts of any computer logs or database records kept in relation to ourselves or in relation to our financial or personal information.
• Full copies of any correspondence in postal, email or any other format which you have entered into with any individual, organisation or third party which contains our personal or financial information, or which pertains to us.
• Details of all systems you currently have in place to ensure our personal or financial information is kept securely, including details of those officers who currently have control of same, and at the time it was held or provided to a third party.
• 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.
• Full hard copy print outs of any of our personal or financial information held in a digital, magnetic or any other format which is held in any archives, backups or other storage devices / locations.
• Your registration number with the Information Commissioners Office.

If you have disclosed any information to a third party (with or without my express permission), will you please include details of this in your reply, along with notes of any legal action passed or pending (to include a true copy of default notices, court orders and the like).

Where any information that you provide includes any charges, for example returned payments, unauthorised overdraft, items paid whilst overdrawn, late payments or being over limit and so forth, would you please advise your breakdown of actual costs (liquidated damages) incurred for each charge, and the Term or Condition which you rely upon to claim such a charge.

I also require that you forward, within the above mentioned time scale, a true copy of the Terms and Conditions that were in force at the time my account was opened, and any subsequent amendments to those Terms and Conditions. These are requested under CPR Pre-Action Protocol 4.6(c).

I enclose the statutory fee of £10 by way of a postal order (no*******)/cheque (no*****) and remind you that you have a total of 40 days in which to comply from the delivered date of this request.

May I confirm, as the ICO has already, that the 40 day time limit is not to be used as a guide for responding to the request but is the maximum period allowed in law and that whenever possible a data controller should proceed with all possible expediency in fulfilling such a Subject Access Request.

I await your timely responses

Yours faithfully
__________________

[Animal]

Re: We lost - repo pending :-(

This SAR covers a hell of a lot of stuff, it depends what you included on your SAR in 2010. Did you get the proof of the assignment? and you now need the FULL statement showing all the charges and if they have refunded or now.

Nothing in the SAR data AFAIK, though of course I wasn't looking for that... :-)

[Animal]

Re: We lost - repo pending :-(

Birmingham Midshires were a subsidiary of the Bank Of Scotland who have been bought by the Lloyds Banking Group.........I think that they are a little bit worried that they have not told you what has gone on with your morgage and that it had been assigned /sold/taken over by Lloyds.

Firstly I would send Birminham and Midshires a SDAR to find out exactly what has gone on. There are questions to asked and answers to be given about all this ........metinks there's some funny busines gone on...............but then I am such a suspicious old so & so

Sparkie

Can I ask for a brief summary of the implications if my mortgage has been assigned? Does it mean they didn't have a cause for action? Link to information will do... :-)

[Gorang]

Re: We lost - repo pending :-(

Personally I would go the whole hog and ask them for everything that they hold about you, even if they give you duplicates of everything you have already, its somtimes worth checking everything again, because if they have fabricated sumit the first time round, then chances are that they will send sumit different the second time, giving you amo against them

If they don't supply what you need then send one more letter giving a further 7 days to comply, if they don't comply, then make an N244 application to the court for the disclosure of the doc's you need, so you can submit a factual appeal

My bet is they will not comply with the SAR and you will need to make the application through the court, but, you need to show the court that you gave them every opertunity to comply with your request which is your right under the DPA, before making the app through the court

[Animal]

Re: We lost - repo pending :-(

Birmingham Midshires were a subsidiary of the Bank Of Scotland who have been bought by the Lloyds Banking Group.........I think that they are a little bit worried that they have not told you what has gone on with your morgage and that it had been assigned /sold/taken over by Lloyds.

Firstly I would send Birminham and Midshires a SDAR to find out exactly what has gone on. There are questions to asked and answers to be given about all this ........metinks there's some funny busines gone on...............but then I am such a suspicious old so & so

Sparkie

I need to understand the implications of this so I can bring it up with the solicitors. Anyone able to explain or point me to an explanation? Anyone give me a hint of the magic words to say to a solicitor so they know what this is about :-)

At the moment I'm puzzled because an assignment of a mortgage doesn't seem to be anything unusual...

I'm seeing the solicitors tomorrow.

[TUTTSI]

Re: We lost - repo pending :-(

It is worth noting that everything that I have mentioned on the SAR can be also be obtained by your solicitor by sending them a CPR since litigation is still pending as far as you trying to get this changed to a suspended possesion order. http://www.google.co.uk/url?sa=t&rct...wzXBJQf-y8yGCg as this matter is in litigation. There are various rules that your solicitor will be able to use to request all those documents including the true assignments of your mortgage and to ensure that every step has been followed correctly.

You also still want your statement of charges this can be also be included in the CPR as sure as eggs are eggs there will be loads of charges and these can be addressed as well. 5. The Claimant swore under oath that some charges had been refunded. They also swore that the monthly payment was nearly 100 more than it should be. I have the documentation to show this monthly payment is wrong and that this payment has been deducted (and continues to be deducted) for the last 18 months or so. Is this the right time to bring this up? Your solicitor will be able to get this information and if they have not told the truth then that will not go well for them and yes this is the right time definately to bring this up. Because they swore under oath that some charges have been refunded the onus is now on them to prove it and to demonstrate this to you to your satisfaction.