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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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This a copy of my application to have a warrant suspended

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This a copy of my application to have a warrant suspended which was rejected by a Judge. The court staff advised me that as I in the USA and couldn't attend I would have to apply in writing but the lender sent a solicitor to represent them in Court and I didn't know that I should have asked to have a tee phone hearing
Case no OPB20562
This is my truthful and honest statement of my request to the Court to suspend the warrant issued for the eviction of my home until I return to the UK and can provide a full and comprehensive defense to this eviction. I am currently in the USA, please see below, for the serious family reasons that require me there and have been since 10 April 2016.
Section 36 of the Administration of justice act applies to my case and I can prove this when I get home to access all my paperwork.
My property has a sale but my buyer has been ill following a stroke and the completion date has been delayed. She has agreed to an exchange of contracts which my Solicitor is progressing.
I have been advised by my lender Engage Credit (my lender was previously GE Money but they sold my account on and the previous lender to them was Platform ) that they have an eviction date for me of the 17th May 2016 from my home. They have not served me with a warrant or informed me by any other means until 10th May 2016 when I spoke by phone to them. I have being paying every month a contribution to my mortgage by standing order, for the last 14 months at least and Engage advised me only last Friday 6th May 2016 that there was no eviction as we had agreed a new repayment plan on 6/4/2016 by a income and expenditure process which they informed me was accepted by them as it would clear my arrears before the end the mortgage term which is only 18 months away. These arrears have occurred as my ill health has forced me to retire and my income has been reduced and now receive a pension.
I am not sure how the eviction warrant has been obtained but they have only advised me of this on Tuesday even though last Friday I rang to them to discuss this matter. I tried all day Monday to call them from here but couldn't get through and they are closed Saturday's.
Engage Credit agreed to the new repayment plan on 6/4/2016 and they asked to set up a Direct Debit which I agreed to but did advise them that my Co op Bank account is currently monitored as I have had fraudulent transactions as recently as March 2016 but the Direct Debit was duly set up to collect the current fee and arrears payment which came to £1250 per month which Engage said I could comfortably afford on the last working day of the month and this DD showed on my Bank Account ready to be used on 3/5/2016.
I tried to call Engage last Friday but couldn't get through before they closed and emailed them instead. Details of the email are as follows:
I am at the hospital this morning with my Daughter but will call later. I spoke to my Bank and they confirmed that you had taken the amount of the normal monthly payment £595.56 instead of the agreed payment made with you on 6th April 2016 when I did the income and expenditure with you. As I have had fraudulent transactions on my account in recent weeks my account is continually monitored for suspicious activity which the Bank decided applied to your Direct Debit so they cancelled it. You may recall that this has happened to your Direct Debits previously as my Bank has concerns about the timing of your transactions and the fraudulent ones. In the meantime a faster payment, as requested, has been sent for £440 on Friday pm to make up the payment already received to the normal monthly amount. I will call Monday to reset the DD with you,
Linda ******
I am currently in the USA staying with my daughter and looking after my Grandchildren. My Daughter is a single parent has been diagnosed with Breast Cancer is having a Mastectomy next Monday. She cannot return to the UK for her operation, as her ex husband is an American and is serving in the US Military abroad and has a Court order prohibiting my Grandchildren from leaving the USA, although my Daughter is not a flight risk and will always return the children to the US as they were born there and are Americans. I will not be able to get home until the end of this month. I have a flight booked home for the 31/5/16 as my older Daughter is then flying in to look after her sister and children after I leave.
Please accept this, this is a terrible time for me,
Linda Vine
Submitted: 10 months ago.
Category: Law
Expert:  Ash replied 10 months ago.

Hello my name is ***** ***** I will help you.

How much are the arrears please?
Alex

Customer: replied 10 months ago.
The arrears are £7340
Expert:  Ash replied 10 months ago.

How long is left on the term please?
Alex

Customer: replied 10 months ago.
I think it's 24 months now Linda
Customer: replied 10 months ago.
The original possession order was made in October 2010
Expert:  Ash replied 10 months ago.

What did the original possession order say? Was it suspended on terms?

Customer: replied 10 months ago.
I don't know to be honest as I wasn't at the hearing and was working in London at the time in 2010. I didn't get any correspondence about it at all then as I was having post redirected to my friends house where I was staying. I would go home may be once a month. I first realized that the lender had an order when they got a warrant in 2015 .
Customer: replied 10 months ago.
My question to you is that after the hearing last Tuesday when my application was turned down. I only had 20 minutes to of time before the eviction took place and as I am still in the USA couldn't appeal in that short time. I need to urgently appeal now but don't know whether I should appeal last Tuesday's hearing as I wasn't there and couldn't attend using the fact that I hadn't been served with any papers at all re the eviction or the original order made in 2010 as again I didn't attend or get papers to defend the action. The arrears were at at time were calculated incorrectly. Linda
Expert:  Ash replied 10 months ago.

Did you attend the hearing by telephone? On what basis was the application rejected?

Has the eviction took place now?

Customer: replied 10 months ago.
The eviction took place on 17/5/16. The Court staff said I couldn't have telephone hearing and the application was rejected but I don't think know why. Shall find out Monday and come to you then? Linda
Expert:  Ash replied 10 months ago.

Ok it's bad news. The possession order has been effected and you can't appeal

Your mortgage agreement is at an end, therefore even if you appeal it doesn't change anything, the eviction has taken place. If it had not taken place you could have appealed.

But it has and I am sorry but you can't change it.

I am sorry if this is not the answer you want and certainly not the one I want to give you, but I have a duty to be honest.

Can I clarify anything for you about this today please?

Alex

Customer: replied 10 months ago.
I have found these examples online and at least some of them apply to me to appeal,If neither the lender nor the court sent the borrower any notification of the case, the lender was not entitled to a possession order. If the lender was not entitled to a possession order they were not entitled to apply for a warrant of eviction. Therefore the eviction should never have taken place. The court will set aside the possession order and allow the borrower back into the property. A borrower can only logically argue this if he did not attend the possession hearing.Case 2
The judge may set aside the possession order if a borrower never received any of the documents - even though they were all properly sent to the correct address. However, the judge will only set the possession order aside if the borrower can also prove that he made the application promptly and that the possession order would not have been made if he had attended the hearing. Again, this argument will only make sense if the borrower did not attend any hearings.Case 3
An eviction will be set aside if the lender was not allowed to apply for it. Examples of this might be:A court had postponed the eviction;
The borrower was up to date with payments under a suspended possession order;
The possession order had been set aside.
It is unlikely that a legitimate bank or finance company would deliberately allow an eviction to proceed in any of these circumstances.Case 4
What amounts to “oppression” or “abuse of process” will largely depend on the circumstances of each case. If a lender has followed all the rules it is highly unlikely that a borrower would win an application on this basis. A lender does not have to send a notice to the borrower warning him of the eviction. The likeliest scenario would be:a borrower reached an agreement with the lender or their solicitors that eviction would not take place if certain payments were made; and,
the borrower made the agreed payments; and,
the lender repossessed the property anyway.
Customer: replied 10 months ago.
Case 4 definitely applies as I had reached an agreement with the lender on 6/4/16 but their error with the Direct Debit caused this to fail and on the 8/5/16 the lender definitely told me the eviction was stopped. It was only on the 11/5/16 that they told me about the eviction. Neither the Court nor the lender had ensured that Inwas informed about the date of the 17/5/16 Linda
Expert:  Ash replied 10 months ago.

but you applied to suspend the warrant after you breached the agreement?

Customer: replied 10 months ago.
Alex, I didn't breach the agreement made on the 6/4/16 which was to pay £1250 per month the lender did. The normal monthly fee is £595.56. This would pay the arrears off during the life of the mortgage and they did a full income and expenditure analysis. The lender insisted on setting up a direct debit up and the first collection was scheduled for the end of April and I did check my online account and it was set up but no amount showed at that stage. I did tell the lender that I had fraudulent transactions on my account and it was constantly monitored by the Fraud Team but that I would ring them and confirm the amount etc. I was paying £160 per month by standing order and I didn't cancel that as this lender had made errors in the past. I checked my account on the 8/5/16 but only saw a debit payment for £595.56 and then it disappeared. I did ring the Bank and they said that the DD wasn't for the amount I had said i.e. £1250 and therefore was regarded as suspicious so they cancelled the DD and payment. Further action is detailed on my 1st message to you Linda
Customer: replied 10 months ago.
Alex, I didn't breach the agreement made on the 6/4/16 which was to pay £1250 per month the lender did. The normal monthly fee is £595.56. This would pay the arrears off during the life of the mortgage and they did a full income and expenditure analysis. The lender insisted on setting up a direct debit up and the first collection was scheduled for the end of April and I did check my online account and it was set up but no amount showed at that stage. I did tell the lender that I had fraudulent transactions on my account and it was constantly monitored by the Fraud Team but that I would ring them and confirm the amount etc. I was paying £160 per month by standing order and I didn't cancel that as this lender had made errors in the past. I checked my account on the 8/5/16 but only saw a debit payment for £595.56 and then it disappeared. I did ring the Bank and they said that the DD wasn't for the amount I had said i.e. £1250 and therefore was regarded as suspicious so they cancelled the DD and payment. Further action is detailed on my 1st message to you Linda
Expert:  Ash replied 10 months ago.

Did You make the application to suspend after the failed direct debits?

Customer: replied 10 months ago.
Hello Alex I am still in the USA so 5 hours behind you at my daughters. The sequence of events is as follows:
I'm
Customer: replied 10 months ago.
Sorry about earlier message but pressed send too soon
On 6/5/16 I rang the lender as my Bank informed me that they had cancelled the DD as it looked suspicious to them and was not for the amount I had advised them would be taken when I rang them in April. During that conversation with the lender which will be recorded by them, they agreed that they had taken the wrong amount but they had got £160 and said that I had to send £435.56 to make up the £595.56 to make up the regular amount which I agreed I would send. Then the would re set up,the DD. They also informed me that without me asking that there was no eviction which must have been untrue then as they must have requested the eviction on the 3/5/16 for a date of the 17/5/16 which would have given me 14 days notice but as the Bailiffs found I wasn't there to open any post and they should have ensured, likewise the Court itself that I had got the notice and date which I hadn't.
I did not know until I rang the Lender on the 10/5/16 that a date had been set.
I rang the Court on the 12/5/16 and they advised me to submit an application using n244 form. I contacted the Court immediateLy to send in an application to have have the warrant suspended.
After sending the form and statement by email Court Staff couldn't open the files I was sending so in the end I had to go to the local library to scan them. The Court got my application on 14/5/16. I could not be in Court as I was in the USA. still. Linda
Expert:  Ash replied 10 months ago.

To be clear the Court dismissed your application?
On what grounds did the lender oppose it?
Did anyone from the lender go to Court?

Customer: replied 10 months ago.
I understand that my application was dismissed but I haven't a copy of this - I will request a copy to be sent by email for us just simply a verbal information form the Court that it had been dismissed.
I don't know why the lender opposed it - I didn't get anything in writing form them and yes they sent a solicitor to the hearing but I obviously couldn't attend- still in the USA. Linda
Expert:  Ash replied 10 months ago.

Did you ask for it to be by telephone?

Customer: replied 10 months ago.
I have got a judgement form the court today. The Court staff advised me that applications to suspend warrants can't be done by telephone hearings only in writing or in person. The judgement all it says is that the application was dismissed as a hadn't attended nothing else about the lender or anything. I can't seem to cut and paste it for you but that is all. Linda
Customer: replied 10 months ago.
I have attached the judgement, please see below. Linda
Expert:  Ash replied 10 months ago.

So it would appear that the lender asked that it be refused then?

In that case its bad news, you could have instructed a Solicitor to attend, or someone else could have for you. Therefore on the basis that the lender attended and it appeared contested the application AND that the eviction went ahead, I am sorry to say you cant set it aside.

This is because the eviction has taken place. You could have appealed that decision to refuse to suspend. Therefore on this basis you cant appeal.

I am sorry if this is not the answer you want and certainly not the one I want ti give you, but I have a duty to be honest.

Can I clarify anything for you about this today please?
Alex

Customer: replied 9 months ago.
I have returned to the UK today just walked into my property and am now staying here will anything happen to me. I have a hearing next week in the CC re setting the warrant aside and if that doesn't succeed will apply to have the 2010 suspended possession order set aside.
Expert:  Ash replied 9 months ago.

You still have not rated my answer which means the site does not pay me, I would appreciate if you do this now.

The lender could potentially get an injunction to get you out. But generally they will not do that if you have a hearing next week.

Can I clarify anything else, if not please remember to rate my answer.

Thanks. Alex

Customer: replied 9 months ago.
Sorry about that, I didn't know that so will do, I think you have been very good. If I do the rating will I have to,pay again, Linda
Expert:  Ash replied 9 months ago.

Single one off fee Linda. Alex

Expert:  Ash replied 9 months ago.

If this answers your question could I invite you rate my answer 3, 4 or 5 starts before you leave today.

I am only paid for my work on this question if you rate my answer, using the star system at the top of the screen. Please do not forget! Thank you.

Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/

Ash, Solicitor
Category: Law
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Experience: Solicitor with 5+ years experience
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