old Halifax shortfall - need advice

[Pagewalkr]

Hi,

In 1994, my daughter defaulted on a mortgage with Halifax and lost her home. Unfortunately, through the years she has written letters, one of which has apparently restarted the clock. However, there was a long period of time when she hadn't heard from Halifax or their debt collectors so she thought the matter was entirely dead and counted on that fact to apply for a 10,000 pound personal loan in 2006. Evidently Halifax also thought the old shortfall was dead because they loaned her the money! My first question is whether estoppel might be used as a successful defense.

On September 8, Halifax made an Application to the court for a hearing to obtain judgment against her as she has not exchanged witness lists with them pursuant to paragraph 7 of the practice direction to part 29 CPR. However, Halifax didn't serve her with a copy. She only learned of it when she received a letter which gave a window for a hearing in February. She then called the court and obtained a copy of the application. Can she now apply to the court to have their case thrown out because they didn't comply with the rule to serve her with a copy and might it succeed?

I am writing on my daughter's behalf while she gets all of her paperwork in order so we can determine what to do next. She is in a situation where she's too poor to hire a solicitor and too well off to qualify for legal aid so she may have to take the route that others on the forum have taken and represent herself.

[gizmo111]

i'm a little confused - what is she defending? the £10,000 loan or a shortfall?

[Pagewalkr]

Thanks for replying and giving me an opportunity to make myself clear. My daughter is defending the shortfall. She thought it was over and that Halifax had given up on collecting so she had no hesitation about going back to Halifax for the 10,000 pound loan. When they gave her the loan it reaffirmed her belief that the shortfall was in the past.

[Pagewalkr]

My daughter's last letter to Halifax was in 2001 and although it carried the banner WITHOUT PREJUDICE, the language she used is being construed by Halifax as an acknowledgement of the debt as defined by a 2006 case wherein the defendant appeared to be negotiating. Between 1994 and y daughter also made the mistake of showing

[Pagewalkr]

Whoops! Hit the wrong button. She showed the old Halifax debt on a spreadsheet that she was giving to their debt collection agency and that was used as further acknowledgement of the debt. She was being honest and trying to show a picture of her finances and it was used against her.

[jody123]

Hi Pagewalkr,

 

hmm, not sure on this one without all the info about the case etc.

 

When did she give the spreadsheet to the debt collection agency?

What exactly did the 2001 letter say?

 

The fact that they gave her a 10,000 loan might give her grounds for estoppel, but I am by no means an expert. Then again, she may have a defence under the statute of limitations - she shouldn't go by what the solicitors are telling her re Rashid as you would need to read the case law to understand how he acknowledged the debt.

 

There must have been paperwork from the courts prior to the exchange of witness statements....and its unlikely the court would go straight for judgement as they usually give more time through an order. She would have been notified that she had to exchange by the Courts. Did the Claimant's send their witness statement to your daughter?

 

Sorry, so many questions..

 

Jody

[Pagewalkr]

Hi, Thanks for your reply and for the questions. I'll check with her again to be sure. I had asked her to put everything in chronological order so we can see exactly what happened when. I have read that lenders often used to use spreadsheets as an acknowledgement of the debt but the courts were getting more strict about that and considered it "without prejudice" communication even when the debtor didn't expressly label the spreadsheet that way. So she may be okay there and Halifax is just trying to bully her. The 2001 letter may be more problematic for her because she didn't expressly dispute the debt. However, it was a letter that was continuing a conversation that she was having in previous letters. Unlike the Rashid letters, hers were labelled "Without Prejudice" but I can see where the letter might be interpreted as an acknowledgement. However, I also found case law which says the correspondence must be looked at as a whole - the claimant can't pick and choose. So the court may look at all of the letters as she refers to her previous letters in her correspondence.

My daughter has been under enormous pressure and time constraints as her job has been very demanding and she just finished the financial settlement part of her divorce last week! Unfortunately there was little to divide except debts, dishes and the family pets.

When Halifax began their attack, she did consult a solicitor but I don't know yet what was done procedurally on her behalf. I do know that the solicitor wanted her to just pay up! Like it was that easy to do.

I've done a lot of reading on this site and I'm very impressed by the quality of help that is available here. Some of the possible defenses that have been raised are so good and so logical and are things I wouldn't have thought of. So now I'm worried that all of the appropriate defenses may not have been used on my daughter's behalf. The solicitor didn't seem to attach any importance to the fact that my daughter was able to get another loan with Halifax. However, I would think that would be a tacit and constructive admission by Halifax that the issue of the shortfall debt was moot and I think that point would be bolstered by the fact that Halifax didn't chase her for the shortfall debt from 2001 to 2007. ( I was a paralegal for several years but it doesn't count for much as my experience was in the U.S.)

Thanks for the questions, I'll pass them on to my daughter.

Page

[ndcdavis]

Try to find out whether in 1994 the court also made a judgment for the amount outstanding under the mortgage.

 

If so, she may have a defence to the claim.

 

Also, the precise terms of the letter which the bank says acknowledged the debt are really important - can you post the full wording?

 

Regards,

Nick.