Points to note:

1. Mortgage taken out on 16th July 2005
2. Monthly instalment of £950.00
3. Arrears of £7,030.00
4. Date of last payment Jan 2008 of £100.00
5. Miss Cooker returned to work in May 2008
6. Mr Fisher making a counterclaim against DOWP for which proceedings are yet to be instructed.

I would request to the Judge that a full possession order to be made in favour of my client and make the following submissions.

No payment has been made or offered since Miss Cook returned back to work in May.

No amount is specified in the counterclaim therefore, Mr Fisher cannot confirm or guarantee that it will be a sufficient amount to cover any arrears, interest and continue with current repayments.

There is no foreseeable date as to when the counterclaim will conclude.   As far as we know Mr Fisher is yet to give instructions to his solicitor.   Claims can take a considerable amount of time to be dealt with therefore s36 of the Administration of Justice Act 1970, repayment within the reasonable period is not being satisfied.

There is also no evidence that the counterclaim will resolve in Mr Fisher’s favour therefore further arrears will continue to build.  

Mr Fisher’s counterclaim should not affect the rights of my client to immediate possession as held in Citibank Ltd v Ayivor (1987).

Mr Fisher and Miss Cook cannot satisfy s8 of the Administration of Justice Act 1973 where it clearly states that Court should only exercise its power to adjourn or suspend possession where the mortgagor is likely to be able both to clear the arrears within a reasonable time and also maintain the current monthly instalments in the meantime.

Request that a possession order should not be deferred for a sale of the house whilst under occupancy by Mr Fisher and Miss Cook as in the Clothier case.   However, the court should refer to the Steele case and see that there is no evidence that a sale is readily available and therefore grant a full order....