Another County Court Summons - HL - Advice Sought Please Help!!

[sequenci]

the man to speak to is Sequenci IMHO hes more informative on mortgages than me.

Well, I don't know about that!

 

secondly " I do not consider that a poor copy of a faxed copy of a “Possession Order” constitutes proof of a mortgage shortfall. "

 

I 100% agree.

 

 

I've been ridiculously busy at work today so I've not been able to go through many threads in great detail. I'm going to spend some time this evening having a look and will certainly endeavour to try my best to help where I can

[jody123]

Hi Sequenci,

 

I do appreciate your input, and I promise to come back and share the experience and give other people a heads up where I can. My friend said that if I can get him through this, then maybe I should consider doing it for a living!! Don't think I could stand the stress!

I can only go back to earlier posed questions - which run through my head ALL the time - why will they not let me see the proof of their claim - is this a bid to bump up their fees - is it because they have no admissible proof - is it because the whole action is time barred?

 

I'm driving myself nuts, but then I guess they rely on that...

 

I've just heard that the solicitors have acknowledged receipt of the Part 18 Application and are writing "to confirm receipt and deal with the ten day timeframe" . Which probably means they are going to try stall tactics again, but I will let you know once the letter is received.

 

Have a great evening,

 

Jody

[sequenci]

It puzzles me too, the thing I do know is that the more a creditor plays "hard to get" or stalls the greater the possibility that they simply don't have the information you've requested.

[Guest ChloeJane]

Hi !

 

Just looked at your defence. I thought it great and you worded it correctly, though going to play with it a little in so far as, much of it needs to be in a witness statement in support of the defence.

 

I will post back an example after I have worked on it and see what you think.

 

I have this amazing book called Pleading without tears and it would have to be the best I have found yet on documents defences and counterclaims, part 18 requests and various other tid bits....so any of my tips come from i have learnt all I have the hard way in the High Court! and the book that is my bible for anyone reading that might have a case coming up or like more information...its a bible that is great!. Thats why i like posting things back.....then everyone gets to feedback...your wording though and conviction is great! You should be a paralegal like me!

 

Post back my changes as you have them as a link...brilliant though!

 

CJ

[pt2537]

Hi !

 

Just looked at your defence. I thought it great and you worded it correctly, though going to play with it a little in so far as, much of it needs to be in a witness statement in support of the defence.

 

I will post back an example after I have worked on it and see what you think.

 

I have this amazing book called Pleading without tears and it would have to be the best I have found yet on documents defences and counterclaims, part 18 requests and various other tid bits The English Legal System 8th Edition by Professor Gary Slapper is a cracking book to read also....so any of my tips come from i have learnt all I have the hard way in the High Court! and the book that is my bible for anyone reading that might have a case coming up or like more information...its a bible that is great!. Thats why i like posting things back.....then everyone gets to feedback...your wording though and conviction is great! You should be a paralegal like me!

 

Post back my changes as you have them as a link...brilliant though!

 

CJ

 

you cant beat having a tutor at the end of the phone with the letters QC after his name:)

 

thats my luxury but the booger takes an eternity to come back to me thats the downside

 

whats your line of work then CJ, if you dont mind me asking its just im curious

[Guest ChloeJane]

Your soooo lucky having a QC at the end of the phone!!!

 

I am a paralegal. In my own delightful High Court battle that has taught me many things. Going to look up the book you suggested!

 

I was going to take up on a Scholarship to Birmingham University to study law and wanted to practice in the area of human rights. I guess that changed and have little faith in the law due to my own battles so am skipping university thinking law is an *ss and looking for a career change! I did want to complete my studies, but lost interest really with the amount of injustices seen.

 

Thought I might make a good politician? So doing a major in civil law at present to while away the time till the case is over. So skills varied, not all the qualifications I want, but live on the forum and learn from posts like yours and others to add to bits already known. So line of work...ummmmm...not sure really!

 

You? Third year law student yes? Is your QC on loan at all...lol...

 

Sorry to have pinched your thread for a sec Jodi.!

[pt2537]

yeah 3rd year within the open university, ive got 2 kids and a family so its a strain i can tell you. plus i work too so its utter chaos

 

hoping to graduate soon and then im hoping to get on the College of Law BVC to become a barrister myself

 

ive already got my Diploma in English Law within the OU so its the LLB next then maybe the LLM

 

its handy having a tutor like i have, hes very busy thats the only trouble so sometimes by the time i get an answer ive normally sorted it out myself:)

[jody123]

Hey guys, no problem, its all about who you know, and don't let anyone tell you any different....

 

Paralegal - I don't think so - I couldn't handle the obfuscation being a yorkshire lass, although I did consider taking postgrad law after my degree (mid-life crisis) but set up a creative agency instead...In any case I'm too morally honest (curses mother under breath) and would end up either dobbing in my clients or knocking opposing council's block off through frustration LOL... I admire you doing OU - I did it for 3 years (psychology) but found it too vague and judgemental...in any case I wanted a First and couldn't work and achieve that (well I could, but I also had baby between my second and third years!). Chloe, so you want to be a politician...I suspect, given earlier comments, that you may find it too demoralising in terms of corruption - just my views - but hey you go for it - nothing to lose...

 

I'm just in the throws of writing the S.A.R - (Subject Access Request) to Halifax (as suggested by ChloeJane) and have wound myself up again....particularly as the last letter prior to receiving the court claim was direct to customer relations asking for information relating to the alleged debt and asking whether, under the CML voluntary agreement (and bearing in mind that no notification of a shortfall, let alone an intention to pursue it has been seen) they would not pursue the alleged debt.

 

No reply was forthcoming, or rather - the Court claim came....Still it all goes to obstruction within the defence, and could count towards their not being awarded costs or interest if it all goes t*ts up... (born pessimistic optimist - that way things can only get better!) under a vexatious action with disregard for the CPR pre action protocols (four days ago I didn't know what a CPR was, but as I'm reading the threads its amazing how quickly you pick up the lingo....

 

Anyhoo I'm off to rediscover a thread on an SAR request to Halifax - from what I remember they are quite sneaky about the data...

 

Have good evenings,

 

Jody

[jody123]

p.s. I can't take credit for the wording of the defence - I'd copied much of it from paul!!

 

Jody

[Guest ChloeJane]

IN THE *** COURT Claim Number

 

BETWEEN

 

Bank of Scotland PLC – Claimant

 

And

 

***** – Defendant

 

________________________________________________________________________

DEFENCE

________________________________________________________________________

 

1I, *****, of *******, am the defendant in this action and acting as a Litigant in person in current proceedings.

 

 

2My replies to the Claimants claims are addressing each and every allegation separately as detailed below. Except where otherwise mentioned in this defence I deny all claims made by the Claimant.

 

3Point 1 of the Particulars of Claim are denied in so far as a Mortgage was entered into with the Claimant though dates are unconfirmed and inconsistent with those stated by the Claimant. The last payment I recall being made on this account was over 12 years ago making the dates held by me inconsistent with the Claimants claims. The Claimant is put to strict proof.

 

4Point 2 of the Particulars of Claim are denied in so far as they are understood in that no knowledge was held that the property was taken into possession in 1991. The property is said to be taken into possession the same year that the Claimant claims the charge was placed and omitted months giving validity or quantifying the period to which the claims are being made. The claimant is put to strict proof.

 

5Point 3 of the Particulars of Claim are denied in so far as they are understood in that the Claimant claims to have sold the property some 8 years after taking possession in 1991. If the Claimants dates are correct, question is raised as to why the property was not sold during this period to mitigate their loss earlier. In any event the claim is denied and the Claimant is put to strict proof.

 

6Point 4 of the Particulars of Claim are denied in so far as they are understood in that had the Claimant sold the property when taken into possession in 1991 then any shortfall would be statute barred under the Limitations Act 1980 in particular section 20. The Claimant is put to strict proof.

 

7Point 5 of the Particulars of Claim are denied in so far as they are understood in that point 6 is repeated and that the Claimant did not seek to mitigate their loss at the time by claiming to have possession of the property for 8 years prior to sale. No knowledge is held of any points raised by the Claimants. The Claimants are put to strict proof.

 

 

8Point 6 and 7 and 8 of the Particulars of Claim is denied in that the Claimants are entitled to any damages having not provided valid documents as proof to support their claim. The Defendants argue the authenticity of the claims made on the following grounds;

 

 

a)The Claimant has only supplied a poor copy of a faxed copy of a “Possession Order” constituting evidence and proof of a mortgage shortfall. A copy of the selling solicitor’s invoice, in another person’s name is at ( Exhibit *).

 

b)Noted is two differing “Completion Statements”, with conflicting and inaccurate information (see Exhibit * an * respectively) as proof of debt.

 

c)The Claimant has provided 2 different documents, which purport to be the same document, one of which is described as an “Amended” completion statement (see Exhibit *) leading me to question the authenticity and validity of one if not both of these documents, and thereby the claim.

 

d)The Claimant claims to have possession of the property in 1991 selling the property 8 years later and has not stated nor given details of the property value at the time of sale unable to substantiate and evidence the loss incurred.

 

 

9Point 9 of the Particulars of claim are not denied in so far as they are understood as no knowledge of the matter was held. It is believed that due to point 8 as raised above, that there has been an error in making the Claim during the transition.

 

10To the best of my knowledge more than 12 years have passed since I ceased payment on this account and the property as I recall was sold. The claim is barred by the Limitation Act 1980 in particular section 20.

 

11A witness statement in support of this Defence further identifies to the Court that the Claimant has taken action failing to comply with Pre Action Protocol for the commencement of a claim, seeking at no time to avoid litigation and supply information requested during initial discussions that would facilitate negotiation on any settlement of this issue before issuing proceedings.

 

12Consequently due to point 11 I cannot assess if I am indebted to the claimant for any sum of monies and put the claimant to strict proof to supply all agreements and possession documents, deeds of sale and mortgage documents forthwith to validate their claim.

 

13Respectfully the Court is asked that should the Claimant be unable to provide evidence to validate their Claim that the matter be Struck out as an Abuse of Process on a statute barred debt under the Limitations Act of 1980, or alternatively Stuck out under Rule 3.4 of the CPR for an ill founded claim made in error and that costs be awarded to me in this matter for time and loss to Defend to date.

 

 

14Save as in hereinbefore expressly admitted, I deny each and every allegations set out in the Particulars of claim. It is denied that the Claimant is entitled to the relief claimed, or any part thereof, for the reasons alleged or at all.

 

 

 

Statement of Truth

 

 

I, *******, believe the above statement to be true and factual

 

 

Signed …………………

 

Date

[Guest ChloeJane]

IN THE *** COURT Claim Number

 

BETWEEN

 

 

Bank of Scotland PLC – Claimant

 

And

 

***** – Defendant

 

_________________________

WITNESS STATEMENT

 

 

1.

 

I **** of ***** make this statement in support of the Defence by the Defendants seeking that the Claimants claim be struck out pursuant to CPR Part 3.4 The factts and matters to which I depose in this statement are within my own knowledge, save as otherwise stated. Where they are not within my own knowledge I believe them to be true.

2. In 1991 I took on a mortgage. Sometime in 94/95 I moved out and lived with a girlfriend for a year or so before buying another property. I am sure the first house sold so I could buy the second one, and I moved house buying and selling a couple of times since.

 

3.In January 2007 I got a letter stating that I owed a shortfall debt on the first house of £15,892.28. This was the first I had heard about it. They were very arrogant on the phone threatening to make me bankrupt and then saying they would take the equity in my current home. I immediately responded to the phone call with a follow up letter asking for everything to be in writing.

 

4.From January to September about 10 letters were exchanged where the Claimant insisted I owed the debt, and I by return asked for proof of same. I was told that the house was repossessed in August 1999 and sold in November 1999.

 

5.I was unaware that the house had been repossessed, let alone that there was a shortfall debt, and when I asked for proof of the debt I was sent a “completion statement” for the woman to whom the house had been sold.

 

6.When I questioned the validity of this I was sent another completion statement with a Halifax logo at the top. This paperwork said that the house was sold in November 2000 and yet the interest owing on the account ran from June 2000 to November 1999 (i.e. backwards and to the date when according to their first paperwork the house was sold).

 

7.When I queried this I was sent an “amended” (note: not “corrected”) completion statement, again supposedly from the Halifax in a different layout format and with the dates of acquisition changed to August 1999. In this statement the interest ran from 1991 to 1999.

 

8.I repeatedly asked for proof of the debt and **** kept saying they had sent “proof”, but I certainly wouldn’t have parted with any money on the strength of the information they sent, particularly with the differing dates/figures/layouts.

 

9.In September I wrote direct to ***** in exasperation asking them to send the proof of this debt as **** seemed unwilling (or unable?) to do so. I then heard nothing further until receiving a County Court Claim Form last weekend, filed by **** in the name of Bank of Scotland.

 

10.The “debt” has now risen to £23K in the court papers due to interest under section 69 of the County Court Act (1984) - the odd thing is that they are applying for interest on the shortfall from 27 November 2001… and not 17 November 1999 when they state the repossession occurred.

 

11.I have been to the Land Registry to see if I can prove when I sold the house, but they have “lost” the files for between 1993-1996.

 

12.According to the 2nd “amended completion statement” the original mortgage was for £29,800, payments of 14.7K were made and interest was added between 28/6/91 and 17/11/99 (although the first statement said between 28/6/00 and 17/11/99) of £17.6K.

 

13.It shows sale of the property as £23K, which was undersold in my opinion, in 1999 (although the first statement said 2000), with insurance costs, solicitors costs, being added. Assuming the house was indeed repossessed, then under s24 of the statute of Limitations Act 1980 they cannot claim for the recovery of the solicitors fees, as they are time barred.

 

14.I do not believe I owe this Debt. I have been given no evidence of the matter that identifies to me clearly that this is my debt and have at all times denied knowledge of the matter or been provided information to support the claim and believe there has been a mistake.

 

 

 

Statement of truth

 

 

 

 

*********************************************************

 

 

 

After carefully looking at everything, the facts above can be added to. The document you sought to submit, is great legal arguement. It is also great to copy and paste such, but have you studied the case law? What if the Judge asks you to give your understanding of the legal arguement?

 

What you first wrote in your post was the statement, and you can add to this but remember it is supporting what is the Defence and what you have experienced and is the words and clarity to support the main document which is the Defence to the whole matter.

 

Adding too much and adding such great legal arguement is great for a skeleton arguement. Use the witness statement to be your words and your story. These are just my thoughts, and I would copy and paste the legal arguement as a skeleton of points to be argued on the day. That does not have to be submitted yet.

 

The above document to me, is far more credible as your witness statement or that of your friends. The Defence document is the short but sweet bit and the statement gives it humanity and less likely to give rise to challenge.

 

You are a litigant in person! Sometimes too many good words can spell trouble. Each case is different on merits.

 

Just my thoughts, remember things can be altered but I believe this is correct.

 

CJ

[jody123]

Goodness CJ - you must have been up half the night - thank you so much...you are a star.

 

Rest assurred that if it goes to the "you're in court matey" stage, then I would ensure that full case law, potted versions and pertinence to the points would be fully worked up, argued and rehearsed beforehand. Would I be able to go in and "represent" my friend - or would I just have to brief him as fully as possible?

 

Not to disparage the work done by CJ - can anyone proffer an opinion as to whether it would be better to go in with the legal defence as originally drafted - or with the revised versions as drafted above??

 

Also if it is the latter are both the statement and the defence filed at the court at the same time?

 

CJ - thank you again for your time/energy/expertise - you are truly a star. ;0)

 

Jody

[Guest ChloeJane]

Morning!

 

You file the defence and the witness statement at the same time.

 

I agree that opinion matters for the statement. If you have read the case law and fully understand it if challenged, then by all means but be careful. To go in with knowledge and quoting case law, you are expected to be challenged as the other side will find the same case, pick holes and find a defence to the reference and it can be daunting and upsetting when you are not prepared and can cause problems.

 

I will be interested in peoples opinions though on the subject. It is only ever a guide to what I put. Input is great as it opens it up for understanding and making sure it is right for you.

 

PS - the document you state is a defence, that was originally drafter is not actually a defence as it does not address the claim and is opinion which a defence statement isn't, a witness statement is. That is why both documents are different!

 

CJ

[pt2537]

Morning!

 

You file the defence and the witness statement at the same time.

 

I agree that opinion matters for the statement. If you have read the case law and fully understand it if challenged, then by all means but be careful. To go in with knowledge and quoting case law, you are expected to be challenged as the other side will find the same case, pick holes and find a defence to the reference and it can be daunting and upsetting when you are not prepared and can cause problems.

 

I will be interested in peoples opinions though on the subject. It is only ever a guide to what I put. Input is great as it opens it up for understanding and making sure it is right for you.

 

PS - the document you state is a defence, that was originally drafter is not actually a defence as it does not address the claim and is opinion which a defence statement isn't, a witness statement is. That is why both documents are different!

 

CJ

 

With reference to the Case law, Absolutely, IMHO and i have been before the court many times ( albeit not for mortgages) you will not only be up to speed on your case references but the cases the other party are referring to in their claim as you will need to not only be questioned on your cases that you've cited but will also need to present an argument why the court should distinguish from the cases cited by the other party etc

 

Aint the law fun Eh?

 

with regards to the PS part on the end CJ im not sure what you are saying there?

 

it was a defence to allegations made in the particulars of claim against Count. there was no way to answer individual points raised in their so called claim because they had failed to sufficiently attach supporting documentation as required by the CPR

 

im not sure if im reading your comments right as i have yet to fire my 5th cuppa down my neck yet:D so apologies if ive misread

 

other than that i cant disagree with anything youve said, spot on

 

 

regards

paul

[Guest ChloeJane]

Only on my third cup!

 

What I meant was that the particulars of claim presented here for this person meant that a defence could be drafted with a correct point reply. Agreed that if the Particulars are not clear nor numbered or the drafting is dubious, yes you have an issue and yes you have to do the best you can and I wasn't saying your Defence your was wrong, sorry if I implied that at any point.

 

What I was clearly trying to get across is that there are different documents that do different things. For example

 

A defence is a reply to the allegations made by a claimant. It has requirements and a format that needs to be clear. In addressing a Claim a person must deny or admit liability. That is the purpose of the document.

 

The witness statement is to support the defence. The witness statement supports the defence document with the events that have occurred.

 

I was trying to put across, that it is important not to mix the two together. Each has a purpose. My opinion was that the two are seperated clearly and that the witness statement is just that....what happened...not full legal arguement that combined both defence and witness statement.

 

One is fact - one is opinion. Your thoughts?

 

PS. When I am drafting a document where the Claim is not clear, I quote a blanket clause that states it is misleading and denied so far as understood, then proceed to redraft the document and re lead the Judge to read the facts and it is a bonus, as I get to present it clearly how I want to read....lol....

[pt2537]

 

Your thoughts?

 

i need another cuppa

 

no seriously, it was my misreading what was being said, sorry, thats the biggest problems with forums you can sometimes misinterpret what is being said

 

Regards

paul

[jody123]

Hi guys,

 

ok, will be looking over the defence doc first as couple of dates are wrong (probably my fault for rushing) Five questions spring to mind....

 

1. Can I insert in the defence that I reserve the right to counter claim (dependent upon the information provided by the claimant) and reserve the right to amend - or is this an automatic right, or would I have to file a separate counter claim

 

2. My worry if I do not put the case law in is that the judge won't take my defence seriously - or is there a duty of proof placed on the claimant?

 

3. What about my thinking this is a vexatious claim (as I tried to obtain info prior to court) and their failure to attach paperwork in support of claim both under CPR rules?

 

4. If I were to file a S.A.R - (Subject Access Request) with the Halifax, could they argue that is admitting liability for the debt or indeed reopening the mortgage account to allow time limitation rules to start again?

 

5. Should I now complain to the FSA/CML about the fact that they have filed a court claim without replying to my last letter written in exasperation at not getting any information?

 

Grateful for any quick response, particularly to Q4 as I would like to send the S.A.R - (Subject Access Request) today - If I can find a template!

 

Cheers,

 

Jody

 

Day 5 of fighting 10 hours kip!

[jody123]

Hi all,

 

It was sixes and sevens whether to file an acknowledgment of service and wait for more info, or file defence....no acknowledgment of receipt of letter from solicitors and deadline for filing something came, so filed County court defence on Friday for a Monday deadline - and then a letter stating that the claimant's solicitors do not have the docs and needs more time to send docs requested under part 18 and could they have 21 days - which would have taken the response time to the initial claim to 28 days. i.e. the date a response would need to be filed.

 

And they really ought to have the papers in their possession if they are bringing a claim.

 

Should an Application Notice for summary judgement of claim to be Struck out be filed now based on the claimant:

 

a. not following pre action protocols; and

b. not following claim protocols (no documents were attached to the claim form in support thereof)

 

or

 

Wait for the Allocation Questionnaire to come from the courts whilst awaiting the "strict proof" requested of the claimant?

 

If the former what do I file it on an N244 - and do I need to ask the claimant for permission to file this form?

 

Any advice gratefully received....

 

Jody 123

[jody123]

Hi all,

 

Filed defence for 17 December and awaiting the AQ from the courts. However the sols said they needed 21 days to respond to my request for information under CPR 18, and those 21 days were up on 31 December and they haven't sent anything.

 

My question is...do I send them a chaser, or do I wait for the AQ and ask for their claim to be struck out if they do not send me the information that they should have attached to the claim form and which they have so far failed to supply even within their own time frame?

 

Any advice gratefully received.

 

Jody

[jody123]

UPDATE

 

Still nothing from the sols re the CPR18 request and today (5 january) received AQ from court - I am assuming that the sols need to send me a copy of the AQ so should I wait for this before filing my mates??

 

Jody

[**Tilly**]

hi jody

if you have recieved and AQ you have 14 days to return i have

given you a link that might help

Allocation Questionnaires - A guide to completion

[pt2537]

What allocation questionairre was it that you received

 

was it N149 or N150

 

Regards

paul

[jody123]

Hi Paul,

 

its an N150 - multi track system....

 

I sent a chaser on 2nd to sols reminding them that the 21 days they had requested for submitting papers had expired and giving them another 7 days to comply .... no response as yet!!

 

Jody

[jody123]

just a little note - what really really irritates me about all this is that they are abusing the court process by filing a claim without any paperwork - the same with Count and one or two other cases I've read on threads on here.....surely this practice should be stopped - no supporting paperwork - no claim....

 

Jody

[The GodMother]

Hi all.

 

Jody l agree with you. If they dont have the relivant documents when they file a case then the claim should be rejected straight away.

 

Why companies feel they are above the law makes me laugh.

 

Chrissi