We lost - repo pending :-(

[Gorang]

Re: We lost - repo pending :-(

After re reading your thread

you could also ask the solicitor (or make the application yourself as it is a quite easy process) to make a application to the court for the disclosure of the documents that you reqiure, with a N244 and a unless order giving them 5 days to produce the docs you require or else their case gets struck out

With the CPR request they can (if they want to be awckward) come back and say they do not have to comply with the request, as litigtion has already started so they will produce them at disclosure stage

In my opinion the unless order is far quicker way than a SAR or a CPR

and after re reading this

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

I suspect that the judge is throwing a life line here as there is s good chance that he has noticed sumit that is NOT right with the whole case, therefor giving you extra time to get a good case together to fight this, so I am 99.9% sure that the judge would grant the unless order in a heartbeat

[Animal]

Re: We lost - repo pending :-(

Thanks guys...

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.

True, but we only have 8 weeks from the hearing...

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.

Without understanding the implications, I'm loath to spend time on this. I will mention it to solicitor to see if he understands, but our priority is to get the order suspended.

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.

We already have these as well as letters clearly showing the fees are more than the figure they stated under oath. Though I suspect they will say some of these are 'different' to what they were talking about under oath.

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.

Well I have a letter from them stating that the increased payment is due to the charges which they claim to have now refunded. It's a Service Charge that I'd already been to Court to prove was not owed before they paid it. The increased payment was capital and interest on this. They have repaid the capital, but the monthly payment remains and no refund for the previously charged payments.

One further question, if we appeal does the repo order get suspended or do we have to do this separately?

[Judge mental]

Re: We lost - repo pending :-(

An appeal and a suspension are two separate issues with different procedures and outcomes. Which have you been allowed extra time to consider?

An appeal would question the decision made by the court to grant a possession order, if successful the application for possession would be refused.

A suspension would keep the order by the court in tact, but the claimant cannot enforce the order providing you maintain payments of the monthly instalments plus an agreed amount off the arrears.

At the hearing, did the claimant produce a copy the the entry in the Land Registry showing they had a right of possession?

The assignment arguments would only come into play with an appeal. assignments are made under Law of Property Act 1925 where a notice of assignment must be served on you before the assignment becomes lawful. (called absolute assignment)

If no notice has been served the assignment is equitable and has various implications. The owner by equitable assignment cannot bring any proceedings to enforce the contract in his own name, this would have to be done by the original creditor for or on behalf of the new owner. You can get a clear understanding by googling equitable assignment

Stuart

[Animal]

Re: We lost - repo pending :-(

An appeal and a suspension are two separate issues with different procedures and outcomes. Which have you been allowed extra time to consider?

Both. We were given 4 weeks to appeal and 8 weeks to seek a suspension.

At the hearing, did the claimant produce a copy the the entry in the Land Registry showing they had a right of possession?

Yes, there are several copies of the LR. At least one show B of S T/A BM.

The assignment arguments would only come into play with an appeal. assignments are made under Law of Property Act 1925 where a notice of assignment must be served on you before the assignment becomes lawful. (called absolute assignment)

If no notice has been served the assignment is equitable and has various implications. The owner by equitable assignment cannot bring any proceedings to enforce the contract in his own name, this would have to be done by the original creditor for or on behalf of the new owner. You can get a clear understanding by googling equitable assignment

AFAIK my agreement is with BM, but the LR shows B of S t/a BM and the Claimant is shown as B of S t/a BM. The mortgage dates from 2003. Is this any help.

[Judge mental]

Re: We lost - repo pending :-(

Hi Animal

On the surface, things look in order in relation to the assignment as both parties are named on the Land Registry and the claim.

In relation to making an appeal, I assume they are attempting to interpret the provisions within schedule 3 of the CCA 2006,

Section 140 applies to new agreements from April 2007 and existing agreements from April 2008, unless the agreement is completed prior to April 2008, in which case the old 'extortionate credit bargains' provisions would apply.

In my understanding, Part 14(1) of schedule 3 of the 2006 Act states that an order under 140 for an agreement made before April 2008 may be made only upon an application for a claim in relation to any of the terms of the agreement , OR (and presumably this is the part they are using) 'at the instance of the debtor or surety in any proceedings of the kind mentioned in paragraph (b) or (c) of section 140 which were commenced at such a time.'

Part b says 'the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;'

Its appears to be a very imaginative interpretation as the two circumstances under which the court can re-open the agreement are either/or, meaning you can make an application in relation to any of the terms OR in relation to the way the creditor has enforced the agreement, at the point of the proceedings.

If you are making an application to the court in relation to the terms of the agreement e.g. unfair and excessive default charges, the court should accept your application under the first provision, particularly if your claim is not in relation to the way the claimant has enforced its rights.

In making a determination whether to make an order under 140 the court should take into account all circumstances it thinks relevant, for the purposes of a claim in relation to the charges (particularly if the charges form part of the amount claimed) you should ask the court to take into account lenders have been fined by the FSA for imposing charges which exceeded their additional administration charges, they were also instructed to contact customers affected to provide redress, something which in your case they have failed to do.

Hope it helps,

Stuart