Santander/Eversheds repossession

[Diana M]

Re: Santander/Eversheds repossession

I just want to do some research to see if there is a way around the strict CPR rules.

There isn't.

Di

[Diana M]

Re: Santander/Eversheds repossession

You just need proof you can pay the mortgage off in a 'reasonable time.'

The case law for that is Cheltenham & Gloucester v Christina Norgan in the Court of Appeal here >

http://www.bailii.org/ew/cases/EWCA/Civ/1995/11.html

It applies to arrears only and a 'reasonable time' is defined as by the end of the original loan term.

Di

[Openlaw15]

Re: Santander/Eversheds repossession

The case law for that is Cheltenham & Gloucester v Christina Norgan in the Court of Appeal here >

http://www.bailii.org/ew/cases/EWCA/Civ/1995/11.html

It applies to arrears only and a reasonable time is seen as by the end of the original loan term.

Di

Yes I am aware of the CA ratio in Norgan already, which was based on the interpretation of s.8, AJA 1973 ("reasonable period"), where the judge said the County Court judges view of the reasonable period of between 2-4 years in practice was wrong, in fact the entire mortgage period term was held to be the reasonable period as a starting point, then a determination on the facts: whether the borrower can pay it off.

[Diana M]

Re: Santander/Eversheds repossession

The remedy is to seek an adjournment, in my view anyway. . . .

. . . Any type of motion (communication) to the court via email for instance may be preferable than completing an N244 Form

You cannot "adjourn" an Eviction Warrant.

The only way to deal with this legal situation is by a formal application to the court to suspend the Warrant not an email.

Di

[Diana M]

Re: Santander/Eversheds repossession

Removed because the opinion was wrong, as the bailiffs are coming already so there's no court hearting unless Rachelle makes an court application. Thank you @Kati for spotting this.

I agree.

Well spotted Kati

Di

[Diana M]

Re: Santander/Eversheds repossession

If there is already a suspended possession order, the courts have stated that the most you can do in this situation is keep asking for a 'stay' (very temporary delay of the actual repossession. Having said that, the case comes from the Court of Appeal so the local County Court may not be up to speed with it.

That's not the case.

A county court Order always has the potential to be varied if a formal application by either party convinces the court to do so.

There's also the potential for a Defendant to seek a set-aside of a Suspended Possession Order in certain circumstances (eg if they weren't aware/present at the hearing).

A "stay" is a pause button on proceedings where either/both parties may have to apply to the court to lift the stay before they can continue with legal proceedings.

Once the stay is lifted (if the court allows) the gloves are off.

Which Court of Appeal case are you referring to please?

Di

[Diana M]

Re: Santander/Eversheds repossession

The complaints team are looking over the complaint am I right in thinking they have to put it on hold while they do so?

They won't decide until the complaints team have looked into it, which doesn't leave me much time

You contacted me recently about this situation.

You said that you had gone on Santander's Twitter account to make 'noises' about the way they had treated you.

Good for you. Never underestimate the power of social media

You said their immediate reaction was to put things 'on hold' but it seems they may have not told their instructed solicitors (Eversheds) or (more importantly) the court to cancel the Eviction Warrant.

I hope you've kept those tweets and any follow-up correspondence because those may need to be included as evidence in your WS.

Di

[Diana M]

Re: Santander/Eversheds repossession

Did the company follow all the pre-action protocols under CPR... ie looked to see whether there were alternatives to possession proceedings?

I fear that ship has sailed. At least for now.

I need to read back through Rachell's previous thread from 2014 where I believe Shelter were helping with the legal situation.

Failure to comply with Pre-Action Protocol can be relevant to legal costs at the time.

If the Suspended Possession Order was "unjust" then the OP should have appealed it at the time (three years ago). An appeal can be made 'out of time' but that would usually be because the DJ made an error based on law or facts rather than the Claimant's failure to comply with Pre Action Protocol.

Sometimes a Suspended Possession Order is no bad thing.

The job in hand is to contest the Eviction Warrant.

There may be an opportunity to retrace legal steps after that.

Di

[Diana M]

Re: Santander/Eversheds repossession

Rachelle can do one of two things, either stop the possession order for 6 weeks under the hardship rule: section 89, Housing Act 1980, or argue it's an abuse of process by the bank. A stay of execution (a few week delay maybe) is the only alternative unless we can argue there has been an 'abuse of process' via a 'Strike Out' under CPR, which if proven could overturn the County Court Possession Order.

Which CPR are you referring to please?

Di

[Openlaw15]

Re: Santander/Eversheds repossession

You cannot "adjourn" an Eviction Warrant.

The only way to deal with this legal situation is by a formal application to the court to suspend the Warrant not an email.

Di

1st scenario

1) The first remedy is to Suspend the warrant of possession, as I stated. 2) Afterwards, it requires a second remedy as the suspension at best will be for a couple of weeks, so it's a very inferior remedy and more an emergency remedy. The second remedy is possibly an appeal to the County Court judge (Circuit) hopefully not too far away. If the CC Circuit judge is too far, we could also request a change of forum near to Rachelle. In this appeal, we could argue that the Order of Possession was an abuse of process and or the County Court judge abused his discretion by not consider the ratio in Norgan so that Rachelle could pay off her mortgage in a 'reasonable period,' which would have been October 2016, merely 2 months away. Other evidence could be abuse of pre-action protocol.

Second scenario

A different alternative is we could try an 'abuse of process' claim before expiry warrant of possession date expires to the same County Court judge (District), but if the claim is rejected then we could appeal to the County Court judge (Circuit) on 'abuse of process' claim. The County Court judge (district) is a finding of fact matter, so could still hear the 'abuse of process' claim' before a Circuit judge hears it on an appeal.

As it is the first remedy to suspend the Warrant of possession is merely an emergency application so that Rachelle is not evicted.

[Diana M]

Re: Santander/Eversheds repossession

1)We could alternatively try an abuse of process claim near the end of the expiry warrant of possession date to the same County Court, and if it's rejected then we could appeal to the Circuit judge on 'abuse of process' claim as the circuit judge.

Who are you referring to when you say "we" in your posts?

You are not speaking on behalf of me especially when your advice is incorrect.

An application to suspend the Eviction Warrant is not an "inferior remedy" (as you described it) the application to suspend is the ONLY remedy for this situation.

Why would the OP want to appeal the Suspended Possession Order when they plan (and are able) to pay off the arrears in full in a few weeks time?

Di

[Openlaw15]

Re: Santander/Eversheds repossession

That's not the case.

A county court Order always has the potential to be varied if a formal application by either party convinces the court to do so.

There's also the potential for a Defendant to seek a set-aside of a Suspended Possession Order in certain circumstances (eg if they weren't aware/present at the hearing).

A "stay" is a pause button on proceedings where either/both parties may have to apply to the court to lift the stay before they can continue with legal proceedings.

Once the stay is lifted (if the court allows) the gloves are off.

Which Court of Appeal case are you referring to please?

Di

There is only 1 way to set aside or strike out a suspended possession order once is has been executed (ie Suspended Possession Order is execution or an Actual Order of Possession itself): CA in Barclays (2002), and that is for abuse of process, or oppressive recovery (ie obtaining a possession order when other remedies were available, ie pre-action protocol). There is no way to lift the stay - the stay just means delay the possession for a short time, ie a couple of weeks.

[Diana M]

Re: Santander/Eversheds repossession

There is no way to lift the stay - the stay just means delay the possession for a short time, ie a couple of weeks.

That's incorrect.

A stay can last (and often does) for years or even indefinitely. The only way to lift a stay is to make an application to the court to lift the stay.

A stay is not relevant to the OP's current situation. She has been advised the correct way to deal with the matter.

Di

[JulieM]

Re: Santander/Eversheds repossession

Two questions, one for each of you.
Diana
If there is a possession order and the reason is removed I.e arrears repaid does that then cancel the order oris it left like the sword of damaclese for ever?

Openlaw
You suggest a stay is at best for a couple of weeks, is that the same for any court proceedings..I.e if they are stayed it is for a finite time of say 2 weeks?

- - - Updated - - -

Diana , thanks I see you have answered my question to Openlaw

[Openlaw15]

Re: Santander/Eversheds repossession

Who are you referring to when you say "we" in your posts?

You are not speaking on behalf of me especially when your advice is incorrect.

An application to suspend the Eviction Warrant is not an "inferior remedy" (as you described it) the application to suspend is the ONLY remedy for this situation.

Why would the OP want to appeal the Suspended Possession Order when they plan (and are able) to pay off the arrears in full in a few weeks time?

Di

The Court is unlikely to suspended the period of possession for more than a few weeks once it's already been executed. In the Court's mind since the court has permitted the bailiffs to take possession in a week or so, the court judge thinks this is reasonable. In theory, based on mortgage law, in terms of 'legal mortgages (ie by deed), the bank doesn't even need an Order of Possession, it can make a possession in its own right. So, why, without due cause would the mortgagee's legal right be deprived for 2 months where they have legal entitlement under law: Bank remedies Possession; Sale; Third party Receiver (LPA); section 101, Law of Property Act 1925....even Foreclosure.. if they want to be oppressive.