Court action for repossession following probate?

Court action for repossession following probate?

8:34 AM, 1st June 2018, About 6 years ago 5

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I am very worried and hope that some of the property 118 members can advise me.

Long story short: I inherited a property from a close family member when she died. Pending and since probate was obtained I have continued to make all the mortgage payments (interest only mortgage) on the property out of my own funds and the property has been empty for some time, for various reasons, and there are no arrears other than the principal sum.

A few months ago (before probate was obtained) I was contacted by a firm of solicitors saying they were going to seek possession of the property as the mortgage had to be redeemed following death my family member. Following discussions direct with the mortgage company, (it seemed that various departments were not talking to each other) I was told no further action would be taken as grant of probate was imminent. I sent details of the grant of administration to them in November, with the closing remark (based on my conversations with their representative) “I understand you will contact me on receipt and we can proceed to conclude this matter in due course.” i.e. I would repay the mortgage in full.

I have heard absolutely nothing from them since sending the documentation: I was assuming that I would receive a redemption statement, and in fact I am actively in the process of refinancing with my mortgage broker and have started refurbishing the property. My plan was to have a new mortgage in place before letting the property.

However, completely out of the blue, this morning I have received in the post a pack of court papers saying there is a court hearing for repossession in early July.

Surely they should have sent me some paperwork prior to this, such as a redemption statement or Letter before Action? It seems very heavy-handed and unreasonable to apply to Court without telling me or giving me the opportunity to pay. Even if I can’t get my refinancing sorted within a short space of time, I could scrape money together to repay the mortgage if required.

I should be grateful for any advice as to whether and how I should respond to the Court papers, and whether I should apply to the mortgage company to get the necessary paperwork to repay the full amount? Or I could I just make a one-off or series of payments into the mortgage company account? I am looking for the easiest and quickest way to make this issue go away. If I could buy some time to conclude the refinancing that would be great, but really I just want to get rid of the court proceedings and minimise future hassle.

Could this proposed action prejudice my current and any future refinancing plans?

Many thanks


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Neil Patterson

8:38 AM, 1st June 2018, About 6 years ago

Hi Judy,

There seems to be a serious lack of communication with you by the Bank on what their expectations are.

First things first always start by instigating the Bank's own complaints procedure so your situation is then looked at properly and you can take the matter further faster. Give them a call and ask for their complaints procedure and register your complaint.

Mark Smith Head of Chambers Cotswold Barristers

11:01 AM, 1st June 2018, About 6 years ago

In addition, you can ask the court to adjourn the case and give you time to refinance under s.36 Administration of Justice Act 1970
"36 Additional powers of court in action by mortgagee for possession of dwelling-house.
(1)Where the mortgagee under a mortgage of land which consists of or includes a dwelling-house brings an action in which he claims possession of the mortgaged property, not being an action for foreclosure in which a claim for possession of the mortgaged property is also made, the court may exercise any of the powers conferred on it by subsection (2) below if it appears to the court that in the event of its exercising the power the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage or to remedy a default consisting of a breach of any other obligation arising under or by virtue of the mortgage.
(2)The court—
(a)may adjourn the proceedings, or
(b)on giving judgment, or making an order, for delivery of possession of the mortgaged property, or at any time before the execution of such judgment or order, may—
(i)stay or suspend execution of the judgment or order, or
(ii)postpone the date for delivery of possession,for such period or periods as the court thinks reasonable.
(3)Any such adjournment, stay, suspension or postponement as is referred to in subsection (2) above may be made subject to such conditions with regard to payment by the mortgagor of any sum secured by the mortgage or the remedying of any default as the court thinks fit".

I am sure the court would give you time to get the refinancing in place in a proper manner, given your conduct to date


14:59 PM, 1st June 2018, About 6 years ago

Whose name is the property now in? This should all be done when it's being transferred to you as before that it doesn't belong to you but to the executor (in title anyway). They usually give you about six month's grace which fits with your post. You can't just do it with the grant, you need to appoint a solicitor as if you were buying the property to do the conveyancing (change of title) and this seems to be a step that's missing from your actions. Are you assuming transfer is automatic? It isn't.

Windsor Woman

22:16 PM, 10th June 2018, About 6 years ago

Thank you all for your contributions. The point about s.36 Administration of Justice Act 1970 is particularly reassuring. I am aware of the need to transfer the property and have a solicitor lined up to do that.
I have spoken to the Mortgage Co about the lack of communication before issuing proceedings. I was told they would review the notes and let me know whether they will stay or stop the repossession hearing. I’ve held back on a making a formal complaint at this stage – although I may yet submit one. My original objective was to avoid getting adversarial whilst they were consulting internally about the repo proceedings. However, having looked into the paperwork more closely I believe there are anomalies in their claim, and I’m in two minds whether to write to the Mortgage Co and challenge them now, or await their decision - if proceedings are not abandoned, the Court will be definitely be hearing about them too.
If the matter did end up going to Court I don’t think the Mortgage Co would look good; tempting as it may be to go in front of the judge and show them up, there would be a lot of work and stress involved, and they have deeper pockets than I do; worse still if I had to pick up their costs. As it is, they are charging me a considerable sum, which I aim to fight.
Observations welcome, thank you.


20:47 PM, 12th June 2018, About 6 years ago

The solicitor should deal with this, you need to do more than "line one up". Your delay is the cause of the problem, I know it's hard when dealing with a death: are you also the executrix? But get one on board ASAP and ask them to contact the mortgage company. It's hard to tell which side the communication breakdown is on as they see that you haven't even started the process and so have no idea of your intentions. Please don't continue to stall on this or you could lose the property. Failing that get the executors (whether you or not) to put it on the market.

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