Shortfall Court Summons - URGENT help needed please!

[ndcdavis]

If you have sent in the acknowledgement of service, you get an extra 14 days.

I have an extra suggestion for your Defence.

Have you still got a copy of the possession order made in 1994? If not, you should send a letter to the claimant solicitors asap:

"Please can you send me a copy of the 1994 possession order referred to at paragraph 2 of the particulars of claim. This request is made under Part 18 CPR".

(also ask the relevant court for a copy)

The reason is this:

1. When taking possssion proceedings, a mortgage lender can ask for a money judgment for the outstanding balance in addition to possession of the property.

2. some mortgage lenders asked for a money judgments; others did not.

3. if the mortgage lender asked for and was given a money judgment then the current proceedings are liable to be struck out as vexatious and/or an abuse of process, because they are proceedings for the same debt in respect of which the lender already holds a judgment. Effectively the current proceedings are an attempt to re-litigate the previous proceedings.

I have brought this argument for clients twice in the last 3 months. In both cases the Court has struck out the bank's claim (and awarded costs against the bank).

If the 1994 order did make a money judgment, you may then want to add a paragraph to the draft defence along the lines of :

7.1 The Defendant avers that by an Order made on [date] in case number [number] the [xxx] county court made an order that the Defendant pay to the Claimant the sum of £[amount] being the sums due pursuant to the mortgage.

7.2 The Defendant avers that the claim is for the same monies which were the subject of the abovementioned previous proceedings in respect of which the claimant already holds a judgment against the Defendant.

7.3 Accordingly this claim is vexatious and/or an abuse of process and should be struck out pursuant to Part 3 CPR.

If you have already sent the defence - dont worry. Make the part 18 request and then if the 1994 proceedings did include a money judgment, make an application to strike out.

NOte that this doesnt get you totally out of the woods - old judgments are still enforceable subject to judicial discretion. However the lender may be stuck with the amount of the judgment less sale proceeds and payments plus interest for 6 years from date of judgment.

Hope this helps!

Nick.

[ndcdavis]

valuation - you can try nethouseprices.com but this will only give you prices from 2000. Before that you will need to spend some tiem at your local library going through local papers or instruct an expert.

[ndcdavis]

After they received your Defence, the court should have sent out an allocation questionnaire. It is a peach colour form. You can also download one from http://www.hmcourts-service.gov.uk/courtfinder/forms/n150.pdf . If that address hasnt come out fully, just do a google search on: n150 allocation questionnaire.

 

You need to complete this as fully as possible and it is ESSENTIAL that you get it to the court in time.

 

You are the defendant so do not have to pay a fee.

 

Make sure you use section I. Attach the part 18 request. State in I that it has not been responded to.

 

Ask at "I" for order that the claimant do answer the part 18 request within 14 days.

[ndcdavis]

You also do need to do some research on the old judgment.

 

This would have been given by the court for the area of the repo'd house. If this is local, go in and ask at the desk otherwise call them. Say that you need an order which was made in about (date) and ask if this will be available. Then give the names of the bank and yourself.

 

If this doesnt help, have a think abut any credit searches that may have been done on you for the 6 years after that order. Organisations who did searches may still have copies. I dont know if the Registry TRust www.trustonline.org.uk can provide details of older judgments.

 

Bear in mind that the claimant should make proper discosure:

1. it should disclose the old judgment

2. it needs to prove its figures - screenshots are not enough

3. it should provide the file of the solicitors who acted on the sale, and the auctioneers/agents file also

4. if it says it cannot find the old judgment, then it should provide a copy of the standard letter of instruction to solicitor agents at the time.

 

Good luck!

[ndcdavis]

this reply is sent in a hurry!

 

fill in court details in top right and your name in the box on the left.

 

Tick the frst bix. NB copy the form at the end (or print 3 times - you need a copy too) and send one to other party.

 

A - I always recoomend trying to settle so tick boxes 1 & 3. There is probably no point in a stay.

 

B - tick no

 

C - there is no relevant protocol so write N/A

 

D - 1st box is "all" (I assume)

then tick "no", assuming you have made no applications.

 

witnesses - INCLUDE YOURSELF. I doubt there are others. Facts - "all"

 

experts - are you claiming sale at a shortfall? If so tick:

yes

none net obtained

single joint suitable - YES

just write in field of expertise "value of property at date of sale"

oral evidence - "no".

 

Track - tick fast track and write in the box - issues are reasonably straightforward and trial will not take more than 1 day.

 

E

 

1 day

fill in any dates which are not available from(say) March 2009 to Dec 09.

 

F

tick "no" in 1st question

 

G

leave blank

 

H

tick "no"

 

I - as my post yesterday.

 

remember to sign and date and you are done!

 

 

 

 

 

Thanks ndc.

I have not received an allocation questionnaire, but have dowloaded one as you suggested.

However, I do need some help filling it all in correctly.

Can you or anyone else point me in the right direction?

[ndcdavis]

Good result!

If you havent yet sent the letter to court though, you might want to wait.

HLX can apply for 'relief from sanctions' and the longer they leave it before they do so, the harder it is to pursuade the court to grant this. Many people therefore wait a while as a court order may 'wake up' the other party.

 

Regards

[ndcdavis]

The next stage is that the Court will consider the allocation questionnaires with the claim and defence. The Court will either set a date for a case management hearing, or will give orders to get the case ready for Trial.

 

For the moment, just write back to the bank to thank them for the documents but to point out what is missing.

 

Which Court is the case in?

 

NOW WHAT'S GOING ON?

 

 

HELP, what do I do now?

[ndcdavis]

You may want to pass this decision to your solicitor...

 

http://anlaw.co.uk/downloads/files/Allaince%20and%20Leicester%20v%20Reynolds.pdf

 

regards

Nick.

[ndcdavis]

Thanks CB.

I have sent back the acknowledgment of service defending all of the claim, but will need HELP with drafting a defence, please. Is this an abuse of process by them?

HELP PLEASE!!!! This is making me ill having to go through all this again.

 

This would appear to be an abuse of process.

 

It's questionnable whether you should file a defence. You may be better just to issue an application to strike out (use form N244).

 

As an aside, you probably should have ticked the box on the acknowledgment of service to say that you dispute jurisdiction, but it is too late now.

 

The order you seek is: The claim be struck out as an abuse of process under CPR 3.4(2)(b).

 

in the grounds section set the history out in detail:

 

(1) The claim should bs struck out as an abuse of process.

 

(2) On [date] the Claimant brought proceedings against me in respect of exactly the same matter under case number [xxxxxx].

 

(3) On [date] the Court ordered that unless the Claimant do file its allocation questionnaire by 3 December 2008 the claim be struck out.

 

(4) The Claimant failed to file its allocation questionnaire by 3 December 2008 and the case was struck out by the court.

 

(5) On or about [date] the Claimant applied for the claim to be reinstated.

 

(6) On [date] the Court ordered that

.

 

(7) The Claimant has failed to comply with that order and thus the action remains struck out.

 

(8) These proceedings are abusive. The claimant should not commence new proceedings. If it wishes to proceed, it should make an application to re-instate the struck-out proceedings and should provide an explanation the Court for its contumelious conduct.

 

(9) I also ask the Court to consider whether to make a civil restraint order under CPR3.4(6).

 

hope this helps

Nick.

[ndcdavis]

HI,

 

I have to travel down to London tomorrow for a couple of days. I'll print out the thread to re-read on the train, then will try to post from my iphone.

 

I still think that if a money judgment was made at the time of the possession order this is important because:

1. It means that there is no need for fresh proceedings, which are an abuse

2. any payments come off capital first - reg 6(2) The County Courts (Interest on Judgment Debts) Order 1991 at The County Courts (Interest on Judgment Debts) Order 1991

 

rgds,

Nick

[ndcdavis]

Ok. There are several things you need to consider:

1. the payments give you a problem; a settlement must be your lowest-risk option.

2. one of your biggest problems is that lack of information; it is important that you turn this round, and make clear that this is the bank''s problem: the bank is the claimant and it needs to prove its case.

3. You need to concentrate on your best points.

 

Anyway here is a rough draft for comments etc

 

1. It is denied that the Defendant is indebted to the Claimant as alleged or at all. The Defendant understands that the Claimant sold and assigned any right of action it may have had against the Defendant to an unknown third party. The Claimant is put to strict proof that it has any interest in the proceedings.

 

2. Further or in the alternative the Defendant avers that in or about October 1994 the [?????] County Court granted the Claimant possession of the Defendant’s property at [address] and also entered Judgment to the Claimant in the sum of approximately £41,000. Due to the passage of time, the Defendant is unable to give the precise amount.

 

3. It is averred that these proceedings are an abuse of process, as they are proceedings to obtain a Judgment for exactly the same debt in respect of which the Claimant already holds a Judgment.

 

4. This abuse of process causes prejudice to the Defendant:

 

a. Interest. Under s.24(2) Limitation Act 1980 interest is limited to 6 years. By seeking a fresh judgment, not only is the claimant claiming interest for the past 16 years, but it also seeks to charge interest for the 6 years following any new judgment, part of which is interest upon interest.

 

b. A new judgment would be immediately enforceable. By contrast, a judgment older than 6 years can only be enforced following an exercise of judicial discretion.

 

5. If, contrary to the Defendant’s primary case, the Defendant is liable to the Claimant then the Defendant disputes the amount claimed.

a. Pursuant to s.6(2) The County Courts (Interest on Judgment Debts) Order 1991, any payments to a Judgment debt are applied first to capital then interest.

 

b. Pursuant to s.24(2) Limitation Act 1980 interest over 6 years old is statute barred.

 

 

c. Interest is in the discretion of the court, and in the circumstances, the Defendant avers that the Court should not award years’ interest.

 

d. The 1994 Judgment was in the sum of about £41000. It is understood from the Particulars of Claim that the net proceeds of sale were £24,000 and additional payments were received of £3000. Accordingly the capital outstanding under the 1994 Judgment cannot exceed £14,000.

 

e. The maximum interest that can be applied is 6 years at 8% totalling £6,700.

 

f. Thus the claim can be for no more than £20,700.

 

6. The Defendant avers that in its discretion no award of interest should be made. To award any interest would be oppressive to the Defendant as it amounts to interest on interest.

 

7. Further, at all material times in exercising its powers of sale, the Claimant owed the Defendant a duty to obtain the best price reasonably available and to incur only reasonable costs in relation to the sale. It is denied, alternatively it is not admitted that the sum of £24,xxx.xx represented the best price reasonably available on the sale of the property. A reasonable price would have been not less than £35,000.00.

 

8. In the circumstances the Claimant’s claim is denied

 

I believe that the facts stated in this Defence are true.

[ndcdavis]

Hi all and thanks nick,

 

Just to clarify actual figures, completion statement shows:

Total advance : £38,xxx.xx

Interest from 10/90 to 12/95 : £18,xxx.xx

Costs,fees,insurance,maintenance,VAT,etc. £4,2xx.xx

 

Sale proceeds : £24,500.00

Payments received : £12,xxx.xx

 

Final Loss : £24,xxx.xx

 

The figure I am trying to estimate is the amount of the debt in Oct 1994.

 

To deconstruct your figures (I am not an accountant) my best guess is that interest from 10/94 to 12/95 would have been about £4000. This means that the Judgment would have been for £38K +£18K - £12K - £4K = £40K.

 

Costs etc would have been deducted from the sale price to form the net proceeds of sale.

 

A final point: the amounts at issue here are significant, and I strongly feel you should ty to see a local solicitor who can help you.

[ndcdavis]

The purpose of the defence is to summarise the issues, and a voluminous document does run a number of risks, but it may be something you cannot avoid in this case. You may want to consider whether you do want to run every point.

 

There is however nothing to prevent you from setting this out as an either/or scenario: If the position is xxx then .... etc

 

You can use headings to give this a structure, and start with a preamble, such as:

 

1. The Defendant is prejudiced in pleading to this matter because of (a) the passage of time and (b) the Claimant's failure or refusal to provide documentation and information requested. The history of this matter goes back to a possession order made in October 1994. The Defendant however does not have a copy of the Order made, nor a full statement of the account, nor... etc

 

Your headings might be:

 

Right to bring claim

Abuse(s) of Process

Money Judgment

Sale at Undervalue

Payments made

Interest

 

Good Luck! I'm away for a few days and will have problems both with internet connection and time, but you are in safe hands anyway!

 

Rgds,

Nick.

[ndcdavis]

So you may need to concentrate on the limitation issues.

 

Dont panic, and dont be bullied. Read through the documents carefully. Number the page with a pencil, then make notes of anything you think might be important, referring to the page number.

 

The key may be to put together a full chronology to put this into context. Draw three columns for Date - event - page number.

 

I am sending you a PM.