The solicitor IS the creditor - what now

[RedVixen]

I have just had a threat of court action form a solictor regarding this - seven days to pay up or else and the letter arrived today but is also dated today - clever that, I didn't know Royal Mail had a time travelling service

 

HIPS SAGA

 

Now given that I didn't instruct the solicitor myself and I have no contractual obligation to the estate agent that did do, and the EA mislead me in a way that was not in my best interests do I have good grounds for telling him to back off - I suspect I will have to pay and should be able to once the six months are up in line with the original plan this but this is being very heavy handed and I suspect given the background it is partly a move to bully me into playing ball

 

I won't be using that Estate Agent for sure and will not recommend him to anyone else

[tifo]

if the estate agent didn't provide you with a HIPS report then there is no service he has provided in that respect, so why is the money owed?

 

if you've received the report then you may have to pay.

[RedVixen]

I haven't received anything when the solicitor last called I said that and he said I don't get it and it goes to him basically saying I don't get a copy at all - there are cases like this where estate agents brokering HIPS reports where they maintain ownership

 

This is partly my issue I am unhappy with the initial advice and now apparently I am supposed to pay a solicitor I didn't instruct who is allegedly done work that I don't and won't own

[nicklea]

Perhaps you need to look at the contract you signed with the estate agent. Was there perhaps something in there that said that if you didn't sell the house through that estate agent then you would have to pay the fee?

 

I would suggest that you read the contract you had with the estate agent very carefully to see exactly what you have agreed to pay and under what circumstances

[RedVixen]

There is NO contract with the estate agent

[RedVixen]

I accept I will probably have to pay the fee, even though I was mislead to my detriment into having a far more expensive than necessary HIP but I want the six months to continue and the HIP has not been completed as they haven't had all of the information back so he is claiming money for some work work that has definitely not been done

[RedVixen]

Right I have written a complaint to the solicitor stating my reasons for believing I am not liable for the bill. They have replied with a patronising letter which says nothing substantial and has a few incorrect facts regarding my contact with them

 

Interestingly they have sent me a further copy of the terms for carrying out the HIP work detailing that I asked for deferred and stating that they agree to that but as I originally thought there are NO conditions for the six months to be voided - so even after I have taken this to the legal complaints service and they side with the solicitor and state I am the client they have broken the agreement anyway

[RedVixen]

I have now received papers form court regarding this - over 12 months since my last contact with them... i have a feeling they may be hoping I have destroyed all the previous communication. I intend to defend the whole ammount

 

Reasons being

 

Firstly The HIPS was not only arranged via the Estate Agent and it would be delivered to him and not me so to me that says the service was being done on his behalf not mine and you would expect in those circumstance that the fee for the HIPS would be incorporated into the estate agents fees. I know thats not how it wworked but that is teh appracoh I inted to take.

 

Secondly they asked for ID and other documents in the initial letter for money laundering regs which I did not send after the next bit kicked in. The letter was written in such a way that suggested that they could not undertake this work without this info but they are claiming all the info is on file - I still have not seen anything including the EPC which I had originally offered to pay pay as a good will gesture in my letter of complaint - wheich was totally diregarded

 

Thirdly the bill was sent out after the estate agent got fed up of being harrassed by the solicitors and lied to them telling them i was no longer going to mmarket the house. The solicitor did not bother to contact me to ask if I was going to use another estate agent they just took the estate agents word and billed me for teh work that I haven't received.

 

If I am the client as they allege, then why bother harassing the estate agent, why did they not confirm the situation with me, the alleged before issuing the bill and why also completely ignore the bit that I also clearly stated in my complaint letter that the intention was still to market the property. Also if I am the client surely its up to me to define the timescales for the work not them. Not to mention that teh six month deferement clause was six month OR the house being sold which ever is sonner there are no other stipulations on this that would suggest that they would chase the money sooner - especially not mentioning the estate agent throwing his toys out of the pram

 

Any thought please

[RedVixen]

I have sent back my acknowledgement of service

 

I have gone the partial admittance route due to the fact that an energy surveryor did attend so I am happy that that work was carried out but I still haven't received anything. In teh defence form I will say that I will pay that within 21 days of receiving the certificate and not before. i don't see why teh surveyor should miss out because the solicitor is incompetant

 

I also offered to pay for that when I complained to the solicitor so to blank that now I feel would go against me

 

That bit is only £45

 

their POC are basically saying none payment of professional fees and there is an invoice attached so just like the response to my complaint nothing of any substance. No contract not even a copy of the original letter which they though was important after I complained

 

Just got to try and put a defence together now

 

Does anyone know the best and easiest to understand sourceof info on contract law - given I haven't signed anything with them and the first letter wanted ID and so on which they never got so as far as I am concerned that would have been me agreeing to their terms and condition teh EPC bit was just and introduction to the energy surveyor

[RedVixen]

I have just had a look at Solicitors code of practice for taking on clients

 

This bit interests me

 

2.01 Taking on clients

 

(1)You are generally free to decide whether or not to take on a particular client. However, you must refuse to act or cease acting for a client in the following circumstances

©where instructions are given by someone other than the client, or by only one client on behalf of others in a joint matter, you must not proceed without checking that all clients agree with the instructions given;

 

 

 

Now the Estate Agent knew I was co-executor therefore doesn't this mean that the solicitor should have contacted my brother as well - the initial letter asked for a copy of the grant of Probate which it seems to me they needed to see before acting to confirm I h ad the right to act as Vendor on a house which wasn't actually mine - or does that not matter for HIPS

[RedVixen]

There is also a now removed subsection in the SRA code of practice that was included at the time that in the case of tied HIPS the solicitor needs to make sure that everyone is clear who the client is

 

now given they ignored everything I said verbally and in writing and acted on the estate agents verbal misinformation without referrence to me at all stages surely they have breached that one as well

[RedVixen]

Simple question - all abit rushed now

 

The POC for this consist of an attached invoice and nothing else nor is anything else referred to in the POC

 

Should I apply for a strike out as I can't defend an invoice with no other supporting documents that purport to demonstrate a contractual obligation

[diddydicky]

did you instruct the estate agent to sell the property?

 

if you did, verbally or otherwise then you entered into a contract with him

 

did he explain that it is unlawful (at the time)l to market a property without a HIP being commissioned (i find it very hard to beleive that he would not do so to be honest)

 

if you did not enter into a contract with the estate agent then who did-

 

what is their relationship to you and to the ownership of the property in question

[RedVixen]

No contract was signed with the estate agent as I am co-executor and both of us understood that both executors would have to be invovled in any contractual agreement. The other executor has not been in contct with either the estate agent or the solicitor at any time

 

Yes he did tell me that a HIP was legally required what he didn't tellme were all of my options given that I was short on money he said I had a choice of a six month deferrement on payment or pay straight away. I was not at any time advised that there were cheaper options

 

He did the introduction to the solicitor but no contract was ever signed with the estate agent

 

There was verbal contact with the solicitor however his behaviour verged on harassment both to me and the estate agent to teh point where as previously mentioned the estate agent basically lied and said I was not going to market the property which was alie. This is the crux and the point where it went pear shaped the solicitor has ignored my WRITTEN notification that I still intended to market the property under the terms of the will. They billed BEFORE the six months deferrement period was up based on the estate agents verbal communication lies NOT my written one

 

The initial letter requested to several pieces of ID including the grant of probate which I did not send in after they behaviour described above. Any layman who received a letter requesting that information would assume that the information was required before they undertook the work. I have not received a HIP nor was I ever going to recieve a HIP it was to be sent to the estate agent whether I signed a contract with him or not - if I chose another estate agent it was going to be sent but this estate agent to the new one I still would not receive it

 

The solicitors own code of conduct states that in cases where there are two people responsible for something such as two executors they should NOT take an instruction without speaking to BOTH parties and confirming that they are in agreement

[diddydicky]

TBh i think that if you "instruct" and estate agent, verbally or in writing- and he confirms that he cannot market the property until the HIp is commissioned- it follows that you know there is a cost involved and i presume, like most folk- you left it to the estate agent to do that rather than tell him you were going to organise it yourselves.

 

normally the HIP is part of the selling costs and so would be invoiced at the sale end of the transaction

 

if however, for whatever reason- the estate agent feels or is told that the property is going to be withdrawn from sale- he would have every right to demand payment for the HIP

 

what i dont un derstand is why the solicitor is suing you as the claimant

 

is the estate agent and solicitor one in the same?

 

normally the estate agent would arrange the HIP to be done and pay the inspector directly- so it should be the estate agent suing you

[RedVixen]

The estate agent was aware that I was the co-executor and as such unable to make instruction on my own so whether the instruction is verbal or otherwise he should not have commissioned anything without talking to the co-executor - a point backed up by the fact that no contracts were signed as it needed both of us. The house had been valued at this point and that was it - I needed to do some tiidying up before it went on the market anyway

 

I knew before I went to see the estate agent that a HIP was required and that it would cost - the advice he gave me was limited and flawed. He made it sound like I only had the 2 options described when in fact had he been acting with integrity he should have advised me that there were cheaper options given the circumstances. Interestingly he called me after the solicitor started issuing bills to complain yet again that the solicitor was harassing him and could I send the info off. He knew he had lied at this point but went on about the time it was taking to get the place sorted, funnily enough

 

Initially the house needed to go on the market fast due to threatened repossession when I was able to sort out the arrears I informed the estate agent and made it VERY CLEAR that the house would still be marketed as soon as it was ready under the terms of the will but that I could slow the process down now to make sure that the internal view was the best it could be - this can make a difference of thousands on the asking price and I have a duty to get the best price under the circumstances. I can't remember if I told the solicitor this. The solicitor kept harassing for the information which is when the estate agent lied and he knew he was lieing he just couldn't take the harassment from the solicitor.

 

Basically it seems that the client and their needs are unimportant here - I wanted the services of an estate agent was given biased information at no point did the estate agent tell me that the HIP was a tied one prior to making the introduction to the solicitor - he just didn't explain that. He presented it afterwards as if that was the way it was for all HIPS which by then I knew wasn't the case. I expected to a) receive it and b) have to pay for it either after six months or whenever the house was sold whichever was first.

 

However I was billed and threatened before both the estate agent and solicitor had seen the evidence that I was entitled to sell the place and given they knew I was co-executor they should have done so before starting the work. They jumped the gun and then turned out to be the sort of people I could not trust and didn't want to work with

 

The whole situation here is due to the misinformation and confusion and I do not expect to pay for something I was mislead about

 

The solicitor claims that the estate agent acted as an introductory third party and therefore I am liable despite the fact that I would not have received the HIP. And as I said before ignored my written statement as to whether the house was on or off the market in favour of the alleged non client who gave a verbal after harassment. The estate agent took advantage of my stressed out and precarious situation and when I cottoned on threw his toys out of the pram - all this happened over a space of a few weeks, but also over 12 months ago

[RedVixen]

The whole situation with tied HIPS was contraversial and several bdies demanded clarification including teh SRA in their code of practice that did not happen here. I half think they are doing this because inmy last conversation with the esatte agent I describe teh solicitor as a slimy pratt and funniy enough teh threats went up 3 gears form we willadd 8% to we will take you to court - again over 12 months ago now. Iam also wondering if they are hoping that I have lost the initial paper work as the one teh solicitors complaints guy sent out was missing teh bit about the grant of proabate being needed

[diddydicky]

may i ask how much the claim is for? a HIp normally i think would be around £300

[RedVixen]

Initial cost £295 which is the maximum they could charge in Wales I believe plus cost currentyly ammounting to £450

 

The solicitor also listed the cost as ' the cost of HIPS in Wales' as if that was set by someone official

 

The POC is signed by a trainee solicitor and given the timescales I am half wondering if they have pulled this out as a practice for teh rookie

 

SO far defence is no contract and they haven't proved contractual obligation even after teh complaint - they went on about phone calls nothing solid, then can't properly defend an invoive as it shows or proves nothing especially since the work listed was never received - nor could it be completed without some of teh infor they requested form me

[diddydicky]

then my personal advice to you would be to agree to settle this matter-

 

is it really worth all the aggro and escalating costs?

 

 

this is a small claims court hearing and the rules of evidence are nowhere near as strict as in a fast track or multi track

 

in short- the judge is going to use his "common sense"

 

it is my opinion that if you go into court citing to the judge that there was "no contract" or that "both executors did not agree" etc etc - that you will get very short shrift

 

the judge (IMO) will take a purely practical view and ignore all and any "perry mason type" of legal arguments and that whoever verbally instructed the Estate agent to market the property knew full well that there would be a cost for a HIP and that it is usual if the property is not sold/withdrawn from sale that the HIP has to be paid for

 

sorry to be harsh- but i think you are wasting your time and money!

[RedVixen]

The advice is appreciated but at no point did I withdraw the house from the market. The estate agent lied and the solicitor took the verbal word of teh third party over the written word of the alleged Client. The solicitor did not treat me as teh client and they did breach their own industries code of practice. I do not see why I should pay soley due to the lies of the estate agent - that is the point where this all went pear shaped.

 

I am also not in a postition to pay - no residual income at all

[diddydicky]

The advice is appreciated but at no point did I withdraw the house from the market. The estate agent lied and the solicitor took the verbal word of teh third party over the written word of the alleged Client. The solicitor did not treat me as teh client and they did breach their own industries code of practice. I do not see why I should pay soley due to the lies of the estate agent - that is the point where this all went pear shaped.

 

I am also not in a postition to pay - no residual income at all

 

sorry it wasnt quite clear from your posts

 

so what happened - did the house sell or not sell?

 

otherwise why exactly are you refusing to pay for the HIP?

 

surely you can agree to offer monthly payments to the other side in settlement- you will have to do so if you lose in court and you will avoid a ccj!

 

you can only offer them what you can afford anyway

[RedVixen]

I haven't received the HIP and to my knowledge neither did the estate agent agent. I have had to delay the sale due to this as I could not afford to risk money on a nother HIP and then of course it became apparent that HIPS were potentially going to be suspended by the Tories if they got in.

 

So no teh house hasn't sold yet but it still will be it has to be as soon as I can afford the EPC

 

If the estate agent had not lied, and I had received the HIP, and the solicitor had not started making threats based on those lies I would not be refusing to pay for a service that I received but as I said I was never going to receive the HIP and having spoken to another estate agents tied HIPS often used to be added to the estate agent fees once a house is sold.

 

I am prepared to risk a CCJ my credit rating is already trashed after losing full time work three years ago and is still be trashed by various DCA so I am prepared to fight because I was ripped off and I am prepared to take teh additional costs.

 

The joint behaviour of both parties has been appauling as I said before they jumped the gun and behaved in a shocking manner before anything was confirmed

[diddydicky]

I haven't received the HIP and to my knowledge neither did the estate agent agent. I have had to delay the sale due to this as I could not afford to risk money on a nother HIP and then of course it became apparent that HIPS were potentially going to be suspended by the Tories if they got in.

 

So no teh house hasn't sold yet but it still will be it has to be as soon as I can afford the EPC

 

If the estate agent had not lied, and I had received the HIP, and the solicitor had not started making threats based on those lies I would not be refusing to pay for a service that I received but as I said I was never going to receive the HIP and having spoken to another estate agents tied HIPS often used to be added to the estate agent fees once a house is sold.

 

I am prepared to risk a CCJ my credit rating is already trashed after losing full time work three years ago and is still be trashed by various DCA so I am prepared to fight because I was ripped off and I am prepared to take teh additional costs.

 

The joint behaviour of both parties has been appauling as I said before they jumped the gun and behaved in a shocking manner before anything was confirmed

 

i see

 

you are right- it is usually added to the selling fees (unless the house is withdrawn or not sold within a given period (usually after around 6 months on- buyers sols will not accept the original HIP as out of date and will demand another

 

why they were not prepared to give you a copy is strange- after all you could easily get someone to pretend to be interested in buying and they would be given a sight of the HIP- so that argument on their side seems wierd.

 

at least it is small claims so costs will not be huge - and if your credit rating is already trashed than i suppose you lose nowt

 

but i suspect- looking at things from a third party point of view (which is what the judge will do)

 

he will dismiss all the talk of lies and want to concentrate only on the basics

 

which will be- why do you expect not to have to pay for a HIP

 

the other thing i cant understand is why it is the sols suing you in their own name- are they also the estate agent- or has the debt been assigned to them

 

only the person with whom you contracted (verbally or in writing) can have a cause of action against you

[hammyhound]

Can I ask when you first put the house on the market - something doesn't add up here.

 

HH