Deposit being withheld. Please advise

[mrsfoot]

Right, here is a quick (ish) update

 

I contacted Mr Agent by telphone when the 21 days had expired. He told me in no uncertain terms that he was not paying the money owed under the court order. I explained that the ccj (not cca as I mentioned in prvious post lol) could be wiped off his credit history if he paid ithint 1 month...his response "go forth and multiply"

 

So I gathered all the necessary paperwork and put the warrant of execution form into the court. Luckily, the receptionist recognised the names and asked me to wait a moment. She then informed me the defendant had been in minutes before me and put an application to havee the judgement set aside. She said the defendant had spoken to me and had agreed the time needed for the hearing (he wanted 15 mins for an actual hearing). I explaineed I hadnt spoken to him re this matter and so she gave me a copy of his application and the covering letter she was just writing to us. Made for good reading:

 

1. He had not been given a date for the hearing in Feb

2. He had not been told court action was going ahead

3. We had refused to take the deposit...he hadnt refused to rfund it!

4. He was using the Court of Appeal Civ 1224 in support of his application to have the judgement set aside.

 

The basis of EWCA Civ 1224 is if the landlord or agent does not have the deposit secured and the tenant brings court action, then as long as the dep is placed in a scheme before the hearing date then no penalty can be applied. The date which is important is not 14 days after the landlord recieves the deposit (which is a common mistake...one I had made in part), but the date of the court hearing

 

So I read and re read the case notes and conclusions...and made some notes.

 

We attended the application hearing....to which the defendant did not attend??? We had the same Judge as at the original hearing, who was not impressed the defendant had requested a hearing ( he could have requested a telephone call or conference) and thn not attended. He told me the Appeal Court hearing was important and had I managed to understand the basis of it.

 

I shocked myself at how much I had actually digested...and explained in full how the conclusions of Lord Justice Rimmer affected our original judgement. I then explained how the defendant was still in breach of HA due to the fact he had not given ANY prescribed information up to and including the date of the application hearing, even though he had placed the deposit into a scheme before the original hearing. I explained the defendant continued to brach the HA and Prescribed Information Order.....and gave him the printed order notes and hilighted sections of the applicable HA sections. I think Judge was impressed!!

He then gave us the verdict.....he was dismissing the application to have the judgement set aside as the defendant was still in breach!!!!!!!!

 

I told the Judge of the telephone call and expllained about how we found out about the application hearing and he informed us the Bailiff procdure was the next course of action. We left the hearing room and went straight upstaairs to give back in the warrant of execution.....and receptionist told us they are working on roughly 5 working days turn around.....so Mr "cocky, I dont need to attend a hearing" Agent will be having the bailiffs attending his premises within 2 weeks. I only wish I could find the exact date and time they would be visiting so I could be there lol

[noomill060]

Looks like Mr Cocky will be having a little visit from Scary Barry....

 

Well done you!

[callumsgran]

[mrsfoot]

Another update!

 

Beryl the court bailiff visited Mr Agent...who told Beryl that he is applying for the judgement to be set aside AGAIN. Beryl left without even checking with the court

 

I have called the court who tell me that Mr Agent has NOT applied for the set aside. I tell the story up to Beryl attnding and ask how often Mr Agent can use the "i applying for a set aside" story...to be told he can do this over and over if he pays the £75 to the court every time. WTF

 

I am LIVID!! Why is there a bailiff system if it can be side stepped by slimey bast***s!

 

I asked the court if an application had been requested and was told NO. Soooooo Beryl gets told there is an application, but its denied by the court. Beryl was as useful as a chocolate teapot. I am writing a letter to the court objecting to the application, in the hope the Judge reads it before letting this shi*bag have another hearing.

 

In the letter I am using the fact Agent has faild to attnd 2 hearings, one of which he specifically requsted. I am including the fact the Judge read all his information he was using in the last application to set aside and listened to ours and said rejected the set aside based on the evidence given. Is there anything else I could use? Wasting time? Vexatious? Any pointers would be brilliant xx

[Ed999]

Please read this FAQ - Got A Judgment? How To Get Paid

[mrsfoot]

Thanks Ed..very interesting to read.

 

A little update.

LL requested another application to have the judgment set aside...and actually attended the hearing. DJ was not impressed LA had missed hearings, especially after hearing LA excuse of "I didnt get the notifications, but I did recieve the court papers". As the hearing notices were sent with the court papers he had received then the DJ took this with pinch of salt and actually said "i find that highly suspicious"

Top n bottom DJ allowed the application for anothr hearing, which will be at the next available date. The good news is LA has to send the whole amount due under the judgement to the court to hold it. He made it very clear LA has to attend the hearing, if not he will not get another chance and the court will release the money to me. I applied for a wasted costs order. DJ said costs are not normally awarded in small claims, so I quoted the CPR rules and gave him examples of why i thought I was entitled. DJ listned and said "Mrs Foot you are obviously doing research into your claim, your standard of bundle is clear, consise and easy to read. I agree you have had extra costs after the Defendant has failed to attend hearings, so I will consider your aplication. Mr Agent, be aware if you lose I will be making a wasted costs order for the claimant"

 

So..another hearing...LA is using appeal case EWCA 1224....deposit placed in scheme b4 hearing so no penalty can apply. However I have lots of evidence that he is still failing to comply with HA plus with luck the Potts v Densley appeal should have been past down and states if the tenancy has ended before the dep is placed into a scheme then the LL / LA must be dealt with in accordance with s214...3 x penalty being the main part.

 

Cant wait for our day in court...bring it on

[mrsfoot]

Quick update

Whooooops...LA failed to pay the money into Court Warrant is returned to Bailiff. Thinking of transferring to High Court so Marstons are the bailiff...and we all know how "insistent" they can be

[mrsfoot]

Update.

 

Agent has played silly buggers and keeps applying to the court for the judgement to be struck out..only h then fails to attend the hearing?

 

So Judge gave him one last chance, but he had to pay all what is claimed into Court Funds. He had 10 days to do so. 20 days later it still hadnt gone in so I wrote to the Judge asking for him to strike out the application based on the fact Agent hadnt complied with the court order.

 

Court issued an order giving Agent 7 days to explain in full why he as late paying the moneey in (it eventually went in 24 days after the original order)

 

Agent responded saying it as fault of the court because they didnt tell him where to pay it to!!

 

Judge has now ordered a hearing this week...not quite sure what its for....possibly for agent to explain why he should have a hearing to have the judgement struck out?? Spoke to the court, who didnt really understand why the Judge has ordered this hearing...oh well we will know whn we go lol

 

I hope for agents sake he has received the dates for this hearing...because if he doesnt turn up then i doubt the Judge will allow his application finally!!!

 

Will update after hearing this week xx

[noomill060]

sounds like a nightmare, but you will triumph in the end.