Santander/Eversheds repossession

[Diana M]

Re: Santander/Eversheds repossession

I love debating, and I love arguing particularly when I know I'm in the right. I'm more competetive than Andy Murray's mother

However I also love my day job which I need to get on with.

Di

[Openlaw15]

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?

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

No, the stay is the only possibly remedy based on mortgage law. The banks has the legal right to possession and the court has granted possession. So, unless the possession order is over-turned for abuse of process/ oppressive recovery, the mortgagee's right to possession can only be delayed (stay). It is just simply absurd to think that the mortgagee's (bank's) right to possession would be delayed for months without due cause. Do you really think the bank's lawyers are just going to keep accepting the suspension of the order. On the contrary, they will cite mortgage law to the County Court judge (district).

[JulieM]

Re: Santander/Eversheds repossession

By, if as you agree , it is reasonable to wait until October to get the arrears it would be more profitable to let the mortgage continue. Not just more profitable but the banks have an uphill struggle regarding PR.

Your comments about being allowed possession anyway is not necessarily correct

West Bromwich Building Society v Wilkinson 2005

[Openlaw15]

Re: Santander/Eversheds repossession

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

AJA 1973: delay, adjourn. Equity based on AJA 1973 is lost when the Possession Order has been executed. Before the Order of Possession is granted, yes judge has discretion to postpone possession for years. Let's say you're a bank and purchased residential property with a view to mortgage them. The bank it turns out is losing business and therefore has to lay staff off in a somewhat economic down-turn. It transpires the bank has mortgages on x amount of properties. It also transpires that some of the mortgagors (borrowers) have come out of work owing to the local factory moving their operations over seas owing to economy problems. The bank is now losing money so it uses its legal powers: section 101, LPA 1925, to take possession of the properties. If the bank doesn't recover and sell the properties in this economic downturn it'll be bad for the country's economy.

[Openlaw15]

Re: Santander/Eversheds repossession

By, if as you agree , it is reasonable to wait until October to get the arrears it would be more profitable to let the mortgage continue. Not just more profitable but the banks have an uphill struggle regarding PR.

Your comments about being allowed possession anyway is not necessarily correct

West Bromwich Building Society v Wilkinson 2005

Look at it logically. Law: Order of Possession. Equity: Delay possession (for redemption). So Equity has followed the law at this point. Law: Suspended Possession Order validated/ executed by court permitting bailiffs. So now equity has been discharged as equity has benefitted Rachelle for 3 years - as this was from the point when the Order of Possession (suspended) applied, ie based on equity.

NB: Equity and law run parallel in that where one party has legal benefit, the other has the equitable benefit.

The banks normally follow pre-action protocols since the foreclosure on an un-occupied property in the 2002 case precedent (Barclays). However, based on pure law, the bank can take possession of a property before the ink is dry. This is where equity comes to the fore, ie equity follows the law. However, equity is discharged where the possession order has been granted (executed) per se. Up until the Order of Possession being granted, equity can step in to delay the bank's right to possession based on the borrower's right (at equity) to 'redemption (ie right to pay mortgage off). This is why we have s.8, AJA 1973. This is why we have pre-action protocol. However, where the mortgagee (bank) has done nothing wrong, once the Possession Order has been executed, since equity at this point has been discharged, the only alternative is to 'stay' the warrant of possession, ie for a couple of weeks.

[Diana M]

Re: Santander/Eversheds repossession

Openlaw, while I find your tutorial fascinating (albeit flawed) I feel it is cluttering up this thread and confusing the OP who has a crisis to deal with.

Rachelle has contacted me by email to help her because the information posted on this thread is understandably confusing her.

Di

[Diana M]

Re: Santander/Eversheds repossession

I'm re-posting this so that Rachelle can see what she has to do.

Santander have turned down her offer so the Application to Suspend the Eviction Warrant needs to be done pronto.

Hello Rachelle,

This is the correct way to deal with your situation.

You make an application to the court to (1) suspend the Eviction Warrant and (2) vary the Paragraph in the original Possession Order which says the Claimant will be granted possession in "X" days if the Order is breached (which it has been). You'll need a copy of the original Suspended Possession Order to identify it. You can ask the court to email you a copy by return.

You will need to file a Witness Statement with that application which states that you will be in a position to pay the lender £10k in October which will clear the arrears in full (as per Para 6 in your first post on this thread).

You will also need to attach (Exhibit) evidence of where those £10k funds will be coming from to back up your stance. Is it from an insurance policy or something?

You will need to attach a copy of the original Suspended Possession Order to your WS too.

I would include your health issues in the WS.

You will need help to fill in the application form and also the application for fee remission (which you appear to be entitled to). You may also be entitled to Legal Aid support (repossessions are one of the few areas of law where Legal Aid is still available in certain circumstances).

I strongly encourage you to contact Shelter (as Kati has previously suggested) today to get hands-on (over the phone) help with the paperwork. Ring Shelter's Free Helpline on 0808 800 4444 which is open until 8 pm on weekdays. The helpline is manned by staff who are fully trained in housing law and specifically in repossessions and evictions.

You may also wish to ring Shelter's Civil Legal Advice Helpline on 0345 345 4 345.

Here's a bit of background about repossessions from their website if you want to understand what is going on around you. You'll see that they are proactive in stopping repossessions > http://england.shelter.org.uk/get_ad...e_court_can_do

It's a worrying time for you but it's not an insurmountable problem

Di

[Kati]

Re: Santander/Eversheds repossession

Openlaw, while I find your tutorial fascinating (albeit flawed) I feel it is cluttering up this thread and confusing the OP who has a crisis to deal with.

Rachelle has contacted me by email to help her because the information posted on this thread is understandably confusing her.

Di

Good luck to Rachelle ... I know you'll do a good job [MENTION=87380]Diana M[/MENTION] xx

[Openlaw15]

Re: Santander/Eversheds repossession

By, if as you agree , it is reasonable to wait until October to get the arrears it would be more profitable to let the mortgage continue. Not just more profitable but the banks have an uphill struggle regarding PR.

Your comments about being allowed possession anyway is not necessarily correct

West Bromwich Building Society v Wilkinson 2005

The bank has a commercial interest to possess the property, dispose of it (sell), and use the money to mortgage other properties. The bank is there to make money and it can only make money by disposing of its assets quickly. For this reason all's the bank is interested in is securing the debt against the mortgage, will make post repossession claims later. The priority for the bank is disposing the property and, in the bank's view, removing the borrower who's a stumbling block to the property's disposal. Any arguments that Rachelle might have had were best 3 years ago when the possession order was made, regrettably. Banks also share liability as they can't take the risk that all borrowers will pay on time, so they sell the 'receivable' (debt) to other banks sometimes.

[Openlaw15]

Re: Santander/Eversheds repossession

Good luck to Rachelle ... I know you'll do a good job @Diana M xx

Kati,

I thought that email between members on this website wasn't permitted? Secondly, why would you give carte blanche to Diana who didn't even know what Forfeiture meant. Suspending a Warrant of Possession is tricky business and could be a waste of £255 - for the court application - if done wrong. Unless there is a material change of circumstances it's unlikely the warrant of Possession will be interfered with. This is why I said make an emergency application for a Fee Waivering (if applicable), as this way it will be free and dealt with quickly, even by a telephone hearing.

[wales01man]

Re: Santander/Eversheds repossession

Openlaw Kati as an administrator of this site is not answerable to you only the site owners maybe like others the OP and others want simple advice not pages of legal quotes and precedents with the greatest respect to you with your degree us mere mortals want simple answers.

[JulieM]

Re: Santander/Eversheds repossession

Openlaw
If you read, the OPs daughter had Diana's email from long ago. I don't know how she got it but she emailed Diana without prompting as a separate issue.

I haven't seen any evidence that Diana doesn't know what forfeiture is and if you read the original thread , help was given and the problems resolved then .

As as for the bank having a commercial interest to sell the property, why if the arrears are paid. Following your logic they would force the sale of every house once it had increased in value.

[Kati]

Re: Santander/Eversheds repossession

Kati,

I thought that email between members on this website wasn't permitted? Secondly, why would you give carte blanche to Diana who didn't even know what Forfeiture meant. Suspending a Warrant of Possession is tricky business and could be a waste of £255 - for the court application - if done wrong. Unless there is a material change of circumstances it's unlikely the warrant of Possession will be interfered with. This is why I said make an emergency application for a Fee Waivering (if applicable), as this way it will be free and dealt with quickly, even by a telephone hearing.

While LB does not condone advice via PM/email on the site, I believe that [MENTION=87380]Diana M[/MENTION] is working separately (via the law firm she is employed by) in this matter. If the OP has decided to get advice from Diana (and therefore Joanna Connolly solicitors) then it is within their rights to do so ... especially seeing as both [MENTION=87380]Diana M[/MENTION] and her employer know Rachelle already due to being involved in the previous case.

I am not (as you accuse) giving "carte blanche" to Diana, I am merely wishing the OP well in this case and know Diana (and her employer) to have a good shot at getting this sorted asap ... it is one of the mainstays of the firm

[Diana M]

Re: Santander/Eversheds repossession

Rachelle has filed an Application to Suspend the Eviction Warrant with 'evidence' to support it.

She has been helped with the form filling by one of Shelter's advisors so I'm confident that it will have been done correctly.

Di

[rachelle12]

Re: Santander/Eversheds repossession

Rachelle has filed an Application to Suspend the Eviction Warrant with 'evidence' to support it.

She has been helped with the form filling by one of Shelter's advisors so I'm confident that it will have been done correctly.

Di

Thank you Diana and every one LEE who have done heir best to help.


n244 has been filed, clerk said I will receive a call today or tomorrow as its urgent. I chose a phone hearing am I likely to be given this? If not can I attend on my mums behalf as she simply won't go and if not can I employ a solicitor without attend ourselves