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Lodging stay of execution (possession) against bank

Discussion in 'Legal Issues' started by Cimbom, 27th Jun, 2016.

  1. Cimbom

    Cimbom Well-Known Member

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    Hello,

    I'm not sure if I've used the correct terms in the subject but I was just after advice about how a person (self representing) could do this and if anyone knows of online resources that might be helpful in explaining common grounds where it has been successful etc. This is quite time sensitive. I believe it would be done in the Supreme Court but I can't find the form on their website.

    Thanks
     
  2. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    Barrister material this sort of thing.
     
  3. Cimbom

    Cimbom Well-Known Member

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    No barrister budget unfortunately. Obviously wouldn't be able to do it at anywhere near the same ability but it'd be a last ditch effort
     
  4. Joynz

    Joynz Well-Known Member

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    Contact local community legal Centre for advice.
     
  5. Simon Moore

    Simon Moore Mortgage Broker - Melbourne Business Member

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    Are you in a position where you can or are close to being able to afford the loan again? You could refinance with a specialist lender, the interest rate would suck, but at least you could keep your house.
     
  6. larrylarry

    larrylarry Well-Known Member

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    Terry_w likes this.
  7. Cimbom

    Cimbom Well-Known Member

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    Thanks for that. The main thing we'd want is just an extension of time (both for the sale and evicting the current tenants) - the deadline given at present is very unrealistic. Is the last part of that page about contacting the registrar to ask for this straightforward? Our sales agent is of the opinion that the property will be more likely to sell tenanted as it is in a largely investor driven regional area and has provided this in writing.
     
  8. larrylarry

    larrylarry Well-Known Member

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    You would have to have proof of your request for extension from the lender and if no agreement is reached, contact the Registrar. Just call the registry of SC first and make an urgent appointment.

    To you, the timeframe is unrealistic but that's not the concern of the lender.

    If you are unsure what to do, get a solicitor on board asap.
     
  9. thatbum

    thatbum Well-Known Member

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    Jesus christ please get some legal advice on something like that. It is not something to attempt self represented or at least without advice on the grounds.

    The grounds are very narrow for that sort of application and "I want more time to sell my house" is not one of them.
     
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  10. Cimbom

    Cimbom Well-Known Member

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    I get that - I know I'm not a barrister. The quote I have been given for legal advice is the same as the amount of arrears that are owing so it's a bit pointless. Also, the extension of two weeks would allow me to clear it anyway when my tax return comes through. I don't see how they'll be able to do anything in that timeframe anyway. It just seems to be a bit arbitrary to prove a point rather than achieve any positive outcome either for themselves or for us.
     
  11. larrylarry

    larrylarry Well-Known Member

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    So you want extension so that you can clear your arrears? Will you be able to afford to service the property? How much more can you get when you sell if extension is given? Some may think this is fanciful. But good luck in any case if you wish to bring an application.
     
  12. Cimbom

    Cimbom Well-Known Member

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    Yes, we can. The issue was with our previous circumstances that have since improved. The extension will allow us to clear the arrears as well as market the property more effectively (i.e. with tenants still in there) to get the maximum sale price.
     
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  13. larrylarry

    larrylarry Well-Known Member

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    Keep us posted. All the best!
     
  14. thatbum

    thatbum Well-Known Member

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    Why not try talking to the lawyers acting for the bank on the possession application? In my experience on those sort of matters in WA, they are often (surprisingly) willing to put a hold on things.
     
  15. Cimbom

    Cimbom Well-Known Member

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    I have asked and also supplied a letter from the selling agent reinforcing my claims but they haven't budged.
     
  16. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    Do you know if the mortgagee will let you stay as is even if you pay up the arrears? Are you planning to refinance?
     
  17. Simon Moore

    Simon Moore Mortgage Broker - Melbourne Business Member

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    If you have sorted yourself out, you could look at refinancing to a specialist lender for 3-6 months, then go back to mainstream once you are 100% back on your feet.

    Obviously, this depends on what your credit file is like.
     
    Last edited: 28th Jun, 2016
  18. larrylarry

    larrylarry Well-Known Member

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    Commonwealth Bank of Australia v Vella - NSW Caselaw is a decision handed down yesterday. It shows that self-representation without proper legal knowledge in drafting and defending will do you no good. The Court did not deal with the content of defence because there wasn't anything that defends the claims by CBA.

    Some extracts:

    "These proceedings commenced on 29 April 2016 seeking possession of land at 410 Georges River Road, Croydon Park. The basis for the claim for possession was default under a loan agreement and a mortgage entered into on 11 October 2013 when the Defendant borrowed a little over $400,000 from Bankwest to whose rights and obligations the present Plaintiff has succeeded.

    "The Defendant, acting for herself, filed a Defence on 20 May 2016."

    "The Defence filed on 20 May 2016, besides not being pleaded in proper form, does not disclose a Defence to the claim for possession."

    "Mr Weston acknowledged that the property needed to be sold so that the Bank could be paid out. The Defendant was anxious to obtain the best price for the property. In that regard Mr Weston said that a small amount of work needed to get the property in good condition to sell it. The Defendant wanted a little time also to speak with those acting for the Bank in relation to the sale."

    You will need to file defence in response to a statement of claim when filed and served on you.
     
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  19. Cimbom

    Cimbom Well-Known Member

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    A few days ago, I asked them for an extension of one month (the deadline is in two weeks - so six weeks from now) in which time I would both have the arrears cleared and attempt to sell the property and they declined. I don't understand how that is a good decision for them?

    I saw a lawyer at a community legal centre yesterday. They agreed that the bank was wrong in claiming that I breached the earlier payment arrangement on a technicality and agreed with my interpretation of the terms. I write for a living so I'm pretty sure I have good command of the English language. Unfortunately, they get to write vague conditions which no one else interprets as meaning what they claim it does and then get away with stuffing up people's finances. The FOS dispute has since been closed so I can't do anything further on that anyway.

    I'm going to try and lodge a complaint through Genworth saying that the bank is not acting in their best interests to see if it gets anywhere but I doubt it will. I am awaiting a call back tomorrow from the lawyer I met with but doubt they'd be able to suggest anything substantial.
     
  20. Joynz

    Joynz Well-Known Member

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    Just in case others on the forum are ever in this situation could you please explain what the special arrangements were and what was the technicality?

    Also what was the time frame - i.e. how long between falling behind in payments to the special arrangement to the technical break to the demand for posession of the property?