My ex landlord had not paid my deposit into a DPS

[MrShed]

I have received your PM about the landlord possibly identifying this thread. If you need to remove specifics edit them out, but personally, as I feel there is no defence to the TDS non compliance, I do not think it would give him any benefit if he does come across this thread.

[help me kick his butt]

Goodness me, Why did I not think of that? Sorry, 4 children to look after and new to the site is my only excuse.

[MrShed]

No worries

[help me kick his butt]

Have sent letter back to solicitor refusing extra time.

I was just wondering as i have added the LA to the claim, if I were to lose, would I have to pay both LL and LA's costs?

I cant see how we would lose but, now they have a solicitor, maybe they mght find a clause somewhere? I feel I have a very strong case but I know they are going to fight me hard.

I think I am going to have to wait at least a month for a hearing as LA's papers were only served yesterday so they will have 14 days for their acknowledgement. Once they have filed their acknowledgement do I get a chance to reply to the court on that, or does the judge just hear from each side once?

Do I have to attend the hearing on a Claim 8?

What does a lack of fact actually mean?

Thanks again x

[help me kick his butt]

Sorry, that sounds daft, I know what a lack of fact means but how can it be relivent in my case as, I have given all the facts that the judge needs to be aware of! Is it more a lack of truth?

Apologies for asking "stupid questions" this really is not my field of expertise

[MrShed]

The relevant section of HA 2004 is pretty much unequivocal - they are highly unlikely to find a loop hole. We obviously cannot guarantee they wont - apart from anything else, we havent had enough feedback from real court cases to see what defences are being used.

 

What I would say is that you can be as confident as it is possible to be in this situation that the claim is defenceless.

[help me kick his butt]

Thanks again Mr Shed, I am getting so fed up with the phone calls though, firstly the agent, then The LL, now the LL's solicitor phones this morning and asks if I have agreed to the extension, I told him I posted him a letter yesterday and he will get my answer this morning. He then kept pushing, well have you agreed or havent you. I told him to wait for the letter, bloody cheek. I feel like emailing them all and telling them to only contact me by post or email, how dare they phone me and shout at me.

Sorry just having a rant. Im so upset about all this this morning. Im going to grow a whole new backbone today!

[help me kick his butt]

Quick question, I have declined extra time for the defendant to get his acknowledgement of service in, Can he apply to the court and get the dates extended by 14 days even if i have refused?

Thanks

[MrShed]

He can, but usually there has to be good reason to do so.

[help me kick his butt]

Hi all, just wanted to say, I have found out a few answers from a solicitor that I have spoken to today. With small claims court you pay for your own solicitor. This is good as My LL has instructed a solicitor and I was worried that if I lost my case that I would have to pay their costs.

Also , Solicitor thinks we have a very straight forward case. To all that read this, Solicitor has echoed everything MrShed has told me ( not that I ever doubted him). What a valuable source of information he has proved to be. Thanks MrShed, I will keep updating my thread as things progress x

[MrShed]

Nice to know that your solicitor agrees with me

 

This is proving to be a good "test" case - please do keep us updated

 

And of course, you are welcome

[help me kick his butt]

Hi thee Mr Shed. I have received acknowledgement back by email from LL solicitor, I would love you to look over it, could I poss email it to you. I would like to put it on here, but i am not very good with computers and am not sure how to black things out etc x

[MrShed]

By all means. Drop me a PM.

[MrShed]

OK read his defence, and there are no surprises. Indeed, he has helped you.

 

Needless to say, you wish to contest his defence.

 

Basically his defence is that because the deposit was paid prior to the date of the tenancy(and also prior to the HA 2004) that it should not be protected.

 

My contest to this would be, by the defendants own admission, he took payment of only a top up deposit, as he already held an amount under deposit. Therefore, the deposit as held was "transferred" to the new tenancy. As such, there is no legal difference between this "transferral" and the return of and repayment of a deposit. In these circumstances, the deposit must have been protected as per HA 2004 S213. As such, you are claiming the full return of the deposit as per HA 2004 S214 ss(3(a)), and also the full payment of three times the value of the deposit as per HA 2003 S214 ss4.

[help me kick his butt]

Thank you MrShed, I quite agree, no surprises. Although he has mentioned that he anticipated that the deposit on our first property would be used to discharge the sums of putting some shingle on a flowerbed that before we moved in was covered with weeds and scattered with glass.

Surely he would have had to of written to us to inform us that he was with holding deposit, and he cant have with held all deposit for such a little thing? He never mentioned that to us, he is trying to get out of the fine, obviously

My other argument will be, if he was with- holding our deposit because of an issue, why the hell would he have rented us a house and not charged us a full deposit if he was unhappy with our first property. And so freely give it back to us now. I do hope the judge will see through this, also he cant seem to make his mind up, who had the deposit, he states in one paragraph that he held it and in another, he states the agent.

So what happens now, Do the court write to me and allow me to defend these lies.

Again, huge thanks

[MrShed]

Your second point is key. It is clear from his actions that he never intended to deduct from the original deposit, as otherwise the deposit taken would not have covered the deposit required.

 

With regards the court action, I would assume at this point that it will simply proceed to court - but I am not the expert at all on the actual court proceedings. Planner should assist better here....

[help me kick his butt]

Thanks MrShed, i will look out for Planner being online. I really appreciate all your advice, as you can probably tell, i am a real worrier. x

[help me kick his butt]

Just spoken to the court, they say that I can write to them and it will go on my file for the judge to see. I want the judge to know that we were never informed , verbally or in writing that the LL was going to be withholding our initial deposit because of an issue in the garden And that this is his way of trying to get out of thie 3 x fine.

Would anyone advise against me writing to the court? Maybe I should just let the judge get on with it?

Any advice always greatly appreciated

Edited October 19, 2008 by help me kick his butt

[help me kick his butt]

EEEk, I have just realised that small claim limit is £5000. My claim is just over 6K.. Although that said, My LL has sent a cheque today for the full deposit which takes my claim back down to a little under 5K.. Thought I would send court a letter to inform them of this.

I am also going to mention in that letter that the LL has not been entirely truthful on his witness statement, I will word this very carefully though.

The LA had his claim served today as co defendant, so it is all moving forward. Will keep you all informed.

Any comments as to whether the 5k limit is correct and if still ok to proceed now that my claim will be under ? Im surprised the court have not mentioned it to me!!

I have also read this evening that if the LL has returned deposit in full then the judge does not have to give 3x penalty. Anyone know anything about this as I am having a good old worry up now x

Edited October 7, 2008 by help me kick his butt

[MrShed]

The 5k limit is correct. You will need to withdraw your claim and file again I would have thought.

 

With regards the 3x penalty, the repayment of the deposit should have no basis on this.

[help me kick his butt]

Hi, spoke to court, they say I can just write in, any ammendmends will be attached to my file and the judge will see. Have sent a lengthy letter explaining all the points and where the LL has not told the truth.

Now I have to wait for the LA's acknowledgement of service. Then the judge will give directions. Whatever that means?

Edited October 11, 2008 by help me kick his butt
cant spell

[help me kick his butt]

Hi There.

I have just read that CPR claim 8 is not dealt with in small claims, does that mean if I lose my case i have to pay oter sides costs?

Thanks in advance for any advice x

[help me kick his butt]

Hi All, The plot thickens.

I received a letter from the LA's solicitor along with their witness statement to the court.

They have asked me to discontinue these proceedings as I dont have any justification for a claim against the LA. They have also said that if I dont discontinue that they request for a directions hearing to change to part 7. This is no great shock to me.

They also say that if this is refused they will ask for it to be struck out.

 

My feeling is that it is down to the LL to be sued, ( i only added them as co defendant because the LA and the LL would not make it clear who held my deposit and were both blaming each other.

 

The witness statement also says that as the deposit has now been paid this claim will now fall into the small claims track, what is the relevance of this statement?

 

I think I am going to discontinue the claim against the LA as I feel it is very important to keep this claim 8.

 

Any opinions as to whether I am doing the right thing would , as always be apprecited.

Thanks xxx

Edited October 19, 2008 by help me kick his butt

[anyIdea]

Before I started my claim, I asked the LA to provide me a witness statement which states the deposit has been held by the LL (as they told me). As the return, I promised I would not sue them. They did it.

I think maybe you can do the same: ask a witness statement from the LA as the condition of removing them as co-defendant.

I think you are doing the right thing. The case is simple, just don't let the judge be distracted from "non-compliance". So making the case as simple and focussed as possible should help.

[help me kick his butt]

Thanks very much anyIdea. I have finally succumbed and have booked an appointment with a solicitor. He seems to think that the fact the LL has now repaid my deposit might be a bit damaging. As you say I think we should really focus on "non-compliance". I dont feel very confident anymore and wish I had not started this now. Im going to see it through though. How is your claim going?