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Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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I am facing Possession action on my buy-to-let property:

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I am facing Possession action on my buy-to-let property: 1. I am the mortgage holder of three properties which I have let out to tenants. I will refer to them as property A, B, C, and D. All properties are mortgaged on buy-to-let basis with one lender Mortgage Express. They have been let out to tenants A, B, C, and I now reside in property D. 2. On 24 March 2015, I received communication that the lender has commenced the process of repossessing all four properties and have appointed Receivers to execute the possession on their behalf. I dispute the repossession on the basis that I paid the mortgage arrears in full on 28 March 2015 in accordance with the lender’s request in a letter dated 26 February 2015. In that letter they asked me to pay up the arrears by 27 February 2015 and they would withdraw the ‘formal demands’ to repay the entire mortgages which preceded the possession actions. I accepted to make the payments in a letter dated 13 March 2015 stating in the letter that I would make the payment by 28 March 2015 and I did. 3. On about 28 April 2015 I received communication from the lender stating that they had de- instructed the Receivers on property D which I reside in. As they did not state the reason for that I assume it may have something to do with the fact that I now reside in the property. The Receiver instruction remains for properties A, B, and C. 4. Current Situation: a. Background 1: The Receivers have made attempts to have the rents from the properties paid to them. Tenant ‘A’ as a result withheld their rent payment stating that they wish to see the resolution of the matter in order to be sure who they should pay their rent to. Tenants ‘B’ and ‘C’ have asked that they not be involved in the matter and so far have continued to pay their rent to me. Both tenants have not responded to communications from the Receivers. They have instead passed the communication to me. Tenant ‘B’ also passed the communications to the Local Authority who pays their rent. I have written to the Local Authority informing them that I dispute the possession claim. Neither myself nor tenant ‘B’ have not from the Local Authority on the matter though I presume the Local Authority may have raised the matter with the lender. I presume that perhaps as a result of the tenant ‘C’ not having responded to the communications from the Receivers, my lender has filed a possession claim against “the occupier” referring to them “persons unknown” requesting that they be granted possession of the property on the basis that the lender has the right of possession for the reasons they stated in their affidavit. They stated that I am the claimant and that they are acting on my behalf. The hearing has been fixed for 15 May 2015. I dispute that claim as I not party to it and I dispute the grounds of their claim as stated in their affidavit. i. Question 1: What can I do to remove myself as a claimant in that possession claim made by my lender against my tenant? ii. Question 2: How do I appear in court to defend the claim given that the tenant will not appear preferring instead to vacate so that the property will be empty by the date of the court hearing on 15 May 2015? Can I appear in court and inform the court that the tenant has vacated and that I am resident in the property hence the defendant to the claim? Should I inform the lender immediately that the tenant will be vacating before the date of the hearing as they do not wish to be involved in the matter and that I shall be re-occupying the property and so I will appear in court to defend the claim? iii. Question 3: Is it correct for the lender to put forward my name as the claimant where-as I have expressed my disagreement over their actions? Are they entitled to use my name in that way in the claim without a court order permitting them to do so given that I oppose their possession of the properties? Should they not have in the first place sort to obtain a court order confirming that the property now belongs to them and no longer myself, at which occasion they will have to prove to the court that their claim for possession is correct? 5. The following would be my grounds of defence against the possession claim addressing the contents of their affidavit/witness statement: a. Paragraph 7: The affidavit states: “…the Borrower has failed to pay the mortgage and the mortgage account is in arrears. Therefore, pursuant to clause C6 the mortgage is payable upon demand” This claim was filed on 23 April 2015. The mortgage arrears was paid in full on 28 March 2015. I am thinking therefore that the statement that “the mortgage account is in arrears” as of the date of the filing of the claim is incorrect. Not only did the lender receive the payment which was made by bank transfer and were notified in writing by letter on the day of payment, their in-house legal department solicitors sent me a written acknowledgement of the payment of the arrears. The account statem

Hello my name is ***** ***** I will help you with this.
Do the terms allow them to take action on your behalf please?
Ash and other Law Specialists are ready to help you
What is your number please?
Customer: replied 2 years ago.

Hello Alex W and thanks for your quick response. First I find below the rest of my letter which was truncated by the justanswer limit of 5000 characters.

"...The account statements receive since then reflects the payment. Their statement therefore to the court on 23 March 2015 that the “the mortgage account is in arrears” is incorrect in my thinking? Do you agree with me?

I have also considered that the statement may be in reference to the previous arrears. But this seems very unlikely because it is not at all suggesting that the paragraph refers to a historical situation. Instead it makes it clear that “the mortgage account is in arrears.”

  1. Paragraph 8:

Whilst they had sent the said letter of 11 February 2015 requesting payment of the full mortgages by 18 February 2015, this is not what they refer to in paragraph 7 of the affidavit. In addition they also sent the attached letter dated 17 February 2015 (letter 33) asking me to pay the arrears by 27 February 2015 so that they shall not proceed with executing the ‘formal demand’. I sent letter dated 13 March 2015 stating that I will make the payment by 28 March 2018 (letter 43) and I did.

i. Question 4:

Given their letter of 17 February 2015 (letter 33), does missing the arrears payment deadline of 27 February 2015 by 30 days mandate the court to give them possession of the properties given?

I also point out letter dated 26 February 2015 (letter 40) in which the lender admits with apologies that they were wrong in their previous position on the dispute over unexplained charges they had put in my account for property ‘A’. This letter was their final position on this dispute which I brought to their attention in a letter dated 25 April 2014. They took eleven months to reach a final position. Their first response to the complaint was sent to me in a letter dated 14 October 2014 six months after I sent the complaint. This dispute was the reason for the occurrence of the arrears."

I am check the agreement to see if it allows them to act for me.

There are also documents I have referred to. Do you want to see them yet?

Calling now.
This is just to confirm our chat. You should attend Court make sure you have evidence that you have cleared any arrears and costs up to the date of arrears paid in full. You should ask the Court to dismiss the claim on the basis that it has been paid and not allow costs from the date it was paid.
You could stop them from taking the matter further by seeking an injunction. its form N1 and N16a.
Does that help?
Customer: replied 2 years ago.

Thanks Alex,

Very helpful. The seeking of injunction you say I cannot do now i.e before the hearing date of 15 May 2015? Or can I complete the forms and file it by Monday with the court so that is it seen by the Judge who will consider the claim.

In effect, what do you advise on this order of action by myself:

  • Today 8 May I write by email and post to the lender’s lawyers informing them that as the claimant I do not wish to proceed with the claim against my tenant as I have since paid the arrears which led to the ‘formal demand’. I offer to meet the applicable cost of the ‘fixed cost Receivers’ for up to 28 March 2015 the date I cleared the arrears. I inform them that otherwise I intend to file for an injunction in court to stop the matter going further as no arears exists stating that as claimant I do wish to pursue the claim any further for that reason.

  • And if they decline that or do not answer before the hearing date of 15 May, I appear in court as the claimant I am and inform the court that I do not wish to proceed with the claim against my tenant as I have paid the arrears not-withstanding the history and the existence of a ‘formal demand’. I received the 'formal demand' in a letter dated 18 February 2015 and the notice of appointment of Receivers on 25 March 2015 and paid the arrears on 28 March 2015.

  • Particular emphasis is on when to file for the injunction with forms N1 and N16A. Is it before the hearing or after the hearing if the possession is granted. I know you mentioned it should be after but I thought to put it in this sequence so that it will be clearer to me. If it is after the hearing, is there any other application I can file in court before the hearing to inform the court of my position and of my above offer to the lender? And if letters to the lender regarding this to the court so that the Judge sees it before the hearing?

  • Any other advise please.

Yes that seems like everything you need to do.
Customer: replied 2 years ago.

Are you saying I file the N1 and N16A now befor the hearing so that it is part of the hearing, or after the hearing if the possession is granted?

You can fill it in now if you wish.
Customer: replied 2 years ago.

Thank you Alex. One more element.

In answer to your initial question “Do the terms allow them to take action on your behalf?”, let us assume it does.

What impact would that have on what I intend to do?

Would the court (and the lender) say that I have no legal right or authority in law to ask that the claim not proceed?

Please call me briefly to round this up. Or I can call you if you prefer.

If the terms allow then that does not help you, they can take action. But if the arrears have been cleared the position is still the same.
Customer: replied 2 years ago.

Thanks Alex

I wanted to ask also if you can suggest a solicitor who can make this presentation for me as I do not want to deal with this myself.

You can find one here