**** SUCCESS ***** Have a Stay Lifted or FOS?

[johnsosu]

I'm more confused than ever. I've subscribed to so many websites and forums that I'm not that much wiser. My case with HSBC for just under £2k has been stayed since last August. I now have mortgage arrears of £5k and assume I would qualify to have the stay lifted under hardship? I have downloaded a form N244 but don't know how to answer the questions i.e. do I want a hearing, do I have an draft order or summary application of facts. Should I approach the FOC or apply to the court to have the stay lifted? Under the circumstances, the fastest route is preferable.

[scoobydoo]

Re: Have a Stay Lifted or FOC?

I assume you mean you have a hearing for the arrears on your mortgage

Is your mortgage with HSBC as well?

When is the hearing?


Can you give some background to the arrears and also your prospects of making future payments

Have the mortgage lender tries to help with your arrears situation at all - in other words have they adhered to the new government guidelines.

If your house is at risk then the quickest method is to try the bank once more with a harsh letter - and if no reply an emergency call to the FOS .

If you give a bit more info I will be back on the site tonight

Jan

[TUTTSI]

Re: Have a Stay Lifted or FOC?

Hi Jonsosu

Welcome to Legal Beagles.

In order to qualify for hardship please take a look at the FSA waiver rules which I have pasted below and if any of the rules apply to you we can certainly have a go at trying to recover some/all of your charges under this hardship route. I have to point out that banks only have to look sympathetically at a claim. Whilst many of the banks are helping some hardship cases you really have to prove your situation and it is not an open and shut case. You will also need to complete an income and expenditure summary . If you are married or have a partner that is joint on the mortgage and household expenses then you need to complete this jointly.
http://www.legalbeagles.info/forums/...ead.php?t=5102.

Post up again once you have read the rules and let us know which of the rules particularly apply to you and your families circumstances. As Scooby says, are HSBC or whoever your lender is are they going for a repossession or a charging order. Are you making arrangments to pay the arrears. Can you also explain in detail what caused you to fall in arrears.... ie sicknes, lost job etc etc.



If you meet ALL or even ANY of these criteria then your Bank will have to be SYMPATHETIC and POSITIVE when considering these difficulties.

1. The firm will be sympathetic and positive when considering any financial difficulties claimed by the complainant. Firms will not subject a complainant to harassment or undue pressure when discussing their problems.

2. In making an assessment of financial difficulty the firm will take into account:

a. evidence of changes in lifestyle, including loss of employment; disability; serious illness; imprisonment; relationship breakdown; death of a partner; starting a lower paid job; parental/carer leave; and starting full-time education;

b. evidence of the following events:

i. items repeatedly being returned unpaid due to lack of available funds;
ii. failing to make loan repayments or other commitments;
iii. discontinuation of regular credits;
iv. notification of some form of insolvency or court proceedings;
v. regular requests for increased borrowing or repeated rescheduling of debts;
vi. making frequent cash withdrawals on a credit card at a non-promotional rate of interest; and
vii. repeatedly exceeding a credit card or overdraft limit without agreement (and, in this regard, where a complainant has incurred over £500 in unauthorised overdraft charges in the previous 12 months, that is to be treated as indicative of financial difficulty).

3. If during the handling of the complaint the firm becomes aware (including by notification from the complainant) that the complainant may be in, or heading towards financial difficulties, the firm will contact the complainant to outline their approach to financial difficulty cases and to encourage the customer to contact the firm if the customer is worried about their position. The firm will also provide signposts to sources of free, independent money advice.

4. The firm will make available to complainants straightforward information in plain English on the firm’s procedures and systems for dealing with customers in financial difficulty.

5. If it becomes clear to the firm that the complainant needs specialist assistance, the complainant will be referred promptly to a specialist team that deals with customers in financial difficulties, if one exists. The firm will give a phone number on all communications that will put the customer in contact with a named person or a team dedicated to dealing with cases of financial difficulty.

6. Where the firm does not have sufficient evidence to assess whether or not the complainant is in fact in financial difficulty, the firm will seek such further relevant information as is reasonably required to make that assessment. In the event that the firm reasonably requires relevant information to be provided by the complainant and the complainant does not provide the requested information within a reasonable period of time, the firm shall not be obliged to treat such a complainant as being in financial difficulty.


If you have a stayed County Court claim then contact your Bank by phone, email or letter and see if they are willing to discuss and settle your Claim on the basis of your financial hardship. If you have a stayed claim then on the written defence you should find a contact name and telephone number for the person in the Bank's legal department who is dealing with your claim and they would be useful first point of contact for you.


If you are starting a new claim and are in financial hardship then please see the following guide to starting a new claim on hardship grounds. How to start a new claim on hardship grounds


You have nothing to lose by doing this as the FSA Waiver states :-

(16) if the firm attempts to resolve a relevant charges complaint after 27 July 2007:
(a) the firm must not seek agreement from the complainant that the resolution is in full and final settlement of the matter;
(b) in relation to such complaints, if the outcome of the test case produces a result that is more favourable to the complainant, the firm must take all reasonable steps to pay any difference in the amount of compensation actually received by the complainant and that that the complainant would have been entitled if his claim has not been settled by the firm then; and
(c) the firm must explain the implications of its approach and commitment;

also.......................

(15) to the extent that sums are ultimately to be paid to complainants in respect of relevant charges complaints that have been stayed, the firm must include in these sums an element of compensation in respect of interest charged to or lost by the customer as a result of being out of money during the stay period;

[johnsosu]

Re: Have a Stay Lifted or FOC?

After the usual process of trying to reclaim £2k of unfair bank charges and a refusal by HSBC I made a claim through the small claims court in August 2008 and the case was stayed pending the outcome of the test case.

I now find myself in mortgage arrears (with a sub prime lender) of £5k and the £2k from HSBC would be “helpful” to reduce the arrears. My sub prime lender has, so far, been quiet but I doubt this will continue. My monthly repayments have dramatically reduced in the last six months with the interest rate cuts and the mortgage is now manageable but there still is the arrears.

After subscribing to all the websites and forums I’m unsure as to what direction I should now go. As there is already a case stayed can I approach the bank? Can the FOC be involved if I already have a small claims case pending?

[EXC]

Re: Have a Stay Lifted or FOC?

The chances of having your stay lifted, on any grounds, are virtually zero.

My advice would be to claim financial hardship for your bank charge claim using the criteria in Tuttsi's post. From the point you inform HSBC that you believe you are suffering hardship they have 8 weeks to give you their decision on whether they agree or not. If they don't agree you can ask the FOS (Financial Ombudsman Service) to adjudicate.

[TUTTSI]

Re: Have a Stay Lifted or FOC?

Also, you may want to join this Group Litigation Order which is being organised by a barrister. take a look at the criteria and add you name if intersted.

http://www.legalbeagles.info/forums/...ad.php?t=13898

[scoobydoo]

Re: Have a Stay Lifted or FOC?

I agree I would write officially identifying yourself as a hardship case and explain your home is at risk - personalise the letter to your circumstances with the Income and expenditure budget sheet and post up for further comments if you want.I am afraid HSBC are a tough nut to crack but if you follow the correct proceedure and go to the FOS -if anything happens with regards to your arrears you will at least be in thesystem and can try and apply some pressure. If necessary you can also take the letters to court for any arrears hearing.

Under the new protocol the lender should avoid a possession hearing if at possible.

So a few golden rules.

Keep everything with the bank and the mortgage lender in writing and by recorded delivery if possible.

Keep in touch with your lender about the arrears and also send them an i&e sheet and offer to pay a small amount over the arrears for now,under no circumstances be bullied into offering more than you can afford.

Keep all letters in a neat file ready for action if needed. The paper trail may prove invaluable later.

Also in your hardship letter you could offer for any monies to be paid directly to your mortgage lender for the arrears - that may help. Worth a try .

[johnsosu]

Re: Have a Stay Lifted or FOC?

I think I spoke too soon. A letter and missed phone call from my mortgage lender today. Will make contact with HSBC and go from there and let you know of any progress.

Thanks to all for the opinions. Am slightly less confused! I feel better that I've actually made some forward progress instead of just trying to think what to do.

[scoobydoo]

Re: Have a Stay Lifted or FOC?

If you do end up speaking to them - say you would prefer to deal with them in writing or if they do come to an arrangement on the phone - make sure it is confirmed in writing.

Who is your lender by the way

Are you on a repayment mortgage?

[johnsosu]

Re: Have a Stay Lifted or FOC?

I'm on an interest only mortgage with GMAC and at last notification am paying 3.65%. I've considerably benefited from the interest rate cuts. GMAC took me to court last September for arrears but the judge ruled in my favour saying that they had not followed the new government guidelines which at that stage were due to come into effect. What "annoys" me is that GMAC charged me for their costs. Asked for a refund but funnily enough GMAC said no. On that occasion I ended up paying the full arrears right at the 11th hour which would not have happened without the judge's ruling. Would have sent him a Christmas card!

[TUTTSI]

Re: Have a Stay Lifted or FOC?

I'm on an interest only mortgage with GMAC and at last notification am paying 3.65%. I've considerably benefited from the interest rate cuts. GMAC took me to court last September for arrears but the judge ruled in my favour saying that they had not followed the new government guidelines which at that stage were due to come into effect. What "annoys" me is that GMAC charged me for their costs. Asked for a refund but funnily enough GMAC said no. On that occasion I ended up paying the full arrears right at the 11th hour which would not have happened without the judge's ruling. Would have sent him a Christmas card!

We are currently starting our claiming regime for exhorbitant charges from our sub prime lender Rooftop Mortgages - and going back to previous lenders. But for now lets concentrate on claiming under hardship on your charges from HSBC. There is starting to be a few that have recently had some partial refunds.

With regards to Mortgages there is the famous case of Norgan and Cheltenham & Gloucester which alows for arrears to be paid over a longer period of your mortgage. Look it up on the internet.

[johnsosu]

Re: Have a Stay Lifted or FOC?

Exactly what I thought Tuttsi - one thing at a time. GMAC have charged me something like £3.5k in the past 2 years in charges. Thought I would work on that after HSBC.

[johnsosu]

Re: Have a Stay Lifted or FOC?

I have just received a letter from HSBC:

".... your claim has been passed to our specialist team for review, as it is always important that attempts to address financial difficulties are made as soon as possible. Unfortunately, we have been unsuccessful in our attempts to contact you at the telephone. We shall be pleased if you will tehrefore arrange to contact us on ...."

I'm a bit hesitant about telephoning as there is no record. Shall I telephone?

[WendyB]

Re: Have a Stay Lifted or FOC?

Well, you could telephone them and tell you to put whatever is is they want to speak to you in writing......or ask them what they want, and ask them to make sure this call is being recorded. They may be ringing to discuss the hardship, in which case you want to hear what they have to say. But under NO circumstances agree to anything over the phone. If by any chance they are making you an offr under hardship grounds, ask them to put it in writing etc. Also, try getting an email address for the person you are talking to, and when you get off the phone, make a record of eveything that was said, and email it to them. make sure you request a "read" recipt for the email. But best thing to do if you do pseak to them, is come back on here and get more advice before you do anything further.

But hang on a while before you do anything, others may have a different slant on the way you should handle this.

[Mochamoo]

Re: Have a Stay Lifted or FOC?

I agree Wendy, a few people have been telephoned recently about their hardship claims.

As Wendy said though do NOT agree to anything over the phone and get everything sent to you in writting, dont forget to take down the name of the person you speak, what time it is (easy to find recorded calls by time) and which office they are in.


If you are like me, I agree to most things on the phone lol ... write to them and tell them to communicate with you via letter only that way there will not be any pressure on you to agree to a nything you are not comfortable with.