Managing Agent leasehold Property 4th Court Claim same issue.

[BlurredFX]

Hey Guys,

 

I was a little bit ill, then got the opportunity for a break away, which I really had to take!!

 

I now have everything I believe I require in my possession, and I have made some ammendments to my draft application, as suggested. Should be ready to go before Friday.

 

Regarding Ground Rent: Is there a reason for you asking? This is a right can of worms in itself, but I do have documents from the LL (not connected with this lot) addressed to me totally incorrectly, though they later corrected themselves. The Freehold Reversion (the freehold) has recently been sold, and this adds further confusion - but not really as my whole point is that this clown is NOT the Landlord and does NOT represent him! They went for possession and took £7k off my mortgage company, but all this is later down the line. I need this lot done before I can chase getting my money back!

 

Not sure on my chances of getting the money back, but this all needs to be done otherwise nothing has changed, and I will have been bullied into something while I was flat on my back in hospital. That just isn't happening!!

 

Do you think I need to bring the Ground Rent into it? Please say NO!!!

 

Blurred

[andydd]

Hi.. Not sure how ground rent comes into it, I see I mentioned it earlier but cant remember why.

 

Maybe best to just leave this out for now, have you been receiving (and paying) ground rent demands ?. They must comply with S166 of commonhold & leasehold Reform Act 2002. You can always dispute ground rent later.

 

Andy

[BlurredFX]

Forgive me for procrastinating, but it's never simple is it... anyway, here is my final draft. Could someone give me a little guidance on b) [towards the end - s47/48] please, as I am a little unsure as to how to phrase it. All other suggestions and comments are welcome.

 

Draft order:

a) That claim 2ND CLAIM be struck out, as it is an abuse of process (CPR 38.7)

b) That claim 2ND CLAIM be set aside, as I was too ill to deal with this matter at the time

 

The claim number 2ND CLAIM is materially the same 1ST CLAIM. It is brought on the same material facts, copies of both applications attached.

 

The claimant launched case 1ST CLAIM in 2009, which I defended. I requested he supply evidence to back up his claim (CPR 18, Request for Information) but he was either unable to or unwilling to supply such. This left me with insufficient particulars to plead, and I was forced to submit an embarrassed defence.

 

A hearing was held on the 15th Feb 2010, prior to which the court instructed that the claimant produce certain documents.

Despite being instructed by the court (copy enclosed), the claimant failed to produce any evidence to support his claim. He was also unable to provide any valid evidence at the hearing on 15th February 2010. He did "purport" (the Judge’s word) to have sent copies of certain document to myself and the court, but neither the court nor I received any actual documents. The claimant also failed to produce anything at the hearing. The court simply received a covering letter and I received nothing. This was commented upon by the Judge at the time, as well as his indication that should he be asked to determine costs at that point, they should be paid by the claimant. The claimant had had his opportunity to produce the evidence upon which he sought to rely, and failed.

 

The case was adjourned, pending informal resolution of the dispute. Despite my efforts, and attempts for a bi-partisan resolution which included that we should form a formal Right to Manage Company on 29th March 2010, I received (hand delivered) a proposed payment arrangement (copy enclosed), which in no way reflected my comments or the agreements made at that meeting that had been held.

 

Despite his lack of evidence, and attempts to frustrate my efforts and paint a different picture to that which had actually happened, the claimant applied to restore his case 1ST CLAIM (two days after his hand delivered proposed repayment schedule). Please note that 1st April was the day before Easter, and 6th April was the day after. His application to restore was granted by the court on the 15th April 2010, but the claimant subsequently withdrew his case. I spoke to NAME on the 27th July 2010 at SSSS County Court to confirm this.

 

This was the last I had heard of the matter until I received a Judgement in Default for 2ND CLAIM in Aug 2011 (copy enclosed). At this time I was unable to defend the case, or make an application for the case to be set-aside, due to firstly not receiving the original documentation, but more importantly I was completely unwell at the time and not able to respond due to being in hospital at the start of what would become a long term stay as an in-patient. It was common knowledge at this time my health was suffering badly and had been admitted to hospital.

 

At the end of 2010 / beginning of 2011, my health started to take a serious turn for the worse, and I was signed off work. As time progressed, my health took a major turn for the worse. The enclosed letters from Dr DEATH (my GP) and Prof. PETERPAN provide a more detailed and comprehensive description of the issues I faced. From these it is clear that at the time I was unable to firstly defend the claim, and subsequently unable to make the appropriate applications to the court due to serious illness.

 

I remain in the "support group" - this means that for DWP purposes, I was and remain completely unfit for any type of work, and therefore not required to seek work or undertake work related activity (under the new rules implemented by the Coallition Goverment, this is a very small percentage). Throughout this time my health was steadily getting worse. Please find enclosed a copy of the Court’s Decision Notice dated May 2012, reference number NUMBER

 

Prior to being admitted to hospital in July 2011 I was completely unable to eat or drink, and had been this way for some time. From a healthy 13 stone, I was reduced to a 7 stone skeleton. I remained in Hospital almost full time from July 2011 until very recently. I am still far from well, essentially being kept alive by a network of tubes running in and out of my body. I am still fed naso-jejunally which means I still have to be fed up my nose direct into my guts through the night, along with other tubes, to drain the internal sepsis.

 

Since my latest discharge (May 2012) from hospital, I have had to regain control, of amongst other things, overdue payments from the DWP, many overdue bills payable to the Utility companies, and today represents the first opportunity to deal with this matter. There is no fixed time frame to be re-admitted, though it could happen, literally, at any time. I remain on a limited calorie intake. This restricts my physical and cognitive abilities to progress things at a faster pace. My condition is currently managed, but certainly far from resolved. I still attend regular out-patient clinics.

 

In light of the above, I respectfully request that claim 2ND CLAIM be struck out. The claimant is clearly at liberty to make an application to restore his original claim 1ST CLAIM.

 

If the claimant elects to restore 1ST CLAIM, I would be able to continue to defend his claim based on (but not exclusively):

 

a) The complete lack of documentation establishing any link between myself and his company, or the company he claims to represent; any proper instruction from the Directors of the company he claims to represent and; a complete lack of authority from the Landlord for those companies to act on his behalf.

 

b) The complete lack of any properly executed demands, Service charge demands did not conform to provisions of lease and do not conform to relevant statute laws ****i.e s47/s48 **** HOW DO I PHRASE THIS

 

c) The fact that the building has not been insured at all, not even by him, despite his claim including for these costs.

 

d) The sum claimed includes sums for a "Sinking Fund", despite there being absolutely no provision in the lease for such a fund.

 

e) there is no provision within the lease for his taking possession

[citizenB]

BlurredFX, when do you need this by ? Site team are aware of your S.O.S

[Andyorch]

Hi Blurred

 

Responding to CB,s S.O.S

 

a) That claim 2ND CLAIM be struck out, as it is an abuse of process (CPR 38.7)

b) That claim 2ND CLAIM be set aside, as I was too ill to deal with this matter at the time

 

I'm confused with the opening statement above is there Judgment already? You set a side first then SO.

 

Regards

 

Andy

[BlurredFX]

Thanks Andy,

 

Yes there is a Judgement from 2ND CLAIM.

 

I am going for a straight strike out as it is a clear abuse of process. The case initially went to Court (1ST CLAIM), but they withdrew it. Upon learning of my admission to hospital, he started a new case based on the exact same details. I was unable to respond (and I have clear medical evidence of this), and he obtained a Judgement in default (2ND CLAIM). He then went to my Mortgage company and took the money off them, and I am paying additonal interest on this.

 

I have applied for both (SA/SO), to give the Court two possible outcomes I would be hapy with, and justified it with evidence.

 

Does that help

[Andyorch]

Ok that's fine TBh the above is a tad in-depth for draft directions and more of a mix of WS and Draft Directions.IMHO I would keep the draft to exactly what you request and then the personal would submitted with the application as a WS.

The Court need to know what you are requesting within the first paragraph.

 

Regards

 

Andy

[BlurredFX]

Ok that's fine TBh the above is a tad in-depth for draft directions and more of a mix of WS and Draft Directions.IMHO I would keep the draft to exactly what you request and then the personal would submitted with the application as a WS.

The Court need to know what you are requesting within the first paragraph.

 

Thanks for that Andy, I think you are right - on reflection, maybe that aspect of it is what I was unsure about. I will re-draft for the group and see what we think then.

 

Thanks again,

 

Blurred:)

[citizenB]

Glad you got a good night's rest

[BlurredFX]

Draft Directions:

 

a) That claim 2ND CLAIM be struck out, as it is an abuse of process (CPR 38.7)

The claim number 2ND CLAIM is materially the same 1ST CLAIM. It is brought on the same material facts, copies of both applications attached.

 

The claimant launched case 1ST CLAIM in 2009, which was defended. It was requested the claimant supply evidence to back up his claim (CPR 18, Request for Information) but he was either unable to or unwilling to supply such. This left the defendant with insufficient particulars to plead, and he was forced to submit an embarrassed defence. After a series of events, detailed in attached witness statement (by MMM KKK, The Defendant), and evidenced by communications with the Court, the claimant withdrew his case.

 

OR

 

b) That claim 2ND CLAIM be set aside, as the defendant was too ill to deal with this matter at the time

At this time he was unable to defend the case, or make an application for the case to be set-aside, due to firstly not receiving the original documentation, but more importantly the defendant was completely unwell at the time, and remains very ill. Please find attached letters from Prof PPP and Dr FFF detailing the defendant's recent medical history, and detailing his illness over the past 12 months or more.

 

Any thoughts or comments?

 

I will continue to work on the WS

[citizenB]

When do you need to submit this BFX ?

 

Have alerted andyorch for you.

[citizenB]

Comments from andyorch for you.

 

The Draft needs to be properly formatted correctly...... format as follows:-

 

 

 

Edit to suit

 

 

#### START OF ORDER ####

 

In the ......... county court

Claim No. ...

 

Before

 

District Judge ………

 

 

Dated ……… 20…

 

 

Claimant A

 

and

 

Defendant B

 

 

 

Draft/ORDER

 

 

UPON reading the Claimant’s application notice dated [ ] and the witness statements filed by the parties

 

AND UPON hearing the Claimant and Counsel for the Defendant

 

IT IS ORDERED THAT:

 

1. The Claimant be granted summary judgment on the whole of the claim and the counter claim by the Defendant struck out.

2. The Defendant do pay to the Claimant forthwith the sum of £[ ] in respect of the claim.

3. The Defendant do pay the Claimant’s costs of the claim, in the sum of £[ ] within 14 days.

 

#### END OF ORDER ####

 

Fill in the gaps where ..... or [ ] is present.

 

 

The following are assumed:

 

1.) That in the hearing you will represent yourself;

2.) That the other side will be represented by counsel;

 

amend the order to suit.

[BlurredFX]

OK. I will have to do some editing I think!!

 

I must remember to switch Claimant and Defendant in the above, as I am the Defendant!!! Otherwise, it could prove quite embarassing asking for an order that I pay him money!!

 

He started the action against me... so I am the Defendant, right? Even though I am applying for the order...?

 

Thanks for bearing with me. This lot is hard work for me to deal with - it's my two nightmare situation (house almost taken off me and 12 months in Hospital) all rolled into one!

 

I'll win through though.

 

Blurred

[citizenB]

OK. I will have to do some editing I think!!

 

I must remember to switch Claimant and Defendant in the above, as I am the Defendant!!! Otherwise, it could prove quite embarassing asking for an order that I pay him money!!

 

He started the action against me... so I am the Defendant, right? Even though I am applying for the order...?

 

Thanks for bearing with me. This lot is hard work for me to deal with - it's my two nightmare situation (house almost taken off me and 12 months in Hospital) all rolled into one!

 

I'll win through though.

 

Blurred

 

 

Yes, he has issued the claim, therefore he is the claimant. You are defendant as you are defending.

 

Yep, definitely ensure you get them the right way round

[BlurredFX]

Hi Guys,

 

I am filling in the n244 having got the details of exactly how much they took (couldn't actually find it :/),

 

How do I estimate costs?

 

I hope this is now taking some kind of shape.

 

I will list the question numbers and how I intend to answer the,.

 

QUESTION 3:

 

UPON reading the Claimant’s application notice dated 14 September 2012 and the witness statements filed by the Defendant

 

AND UPON hearing the Defendant and the Claimant

 

IT IS ORDERED THAT:

 

1. The Defendant be granted summary judgment on the whole of the claim and the claim by the Claimant struck out as it is an abuse of process (CPR 38.7)

2. The Claimant do pay to the Defendant forthwith the sum of £6,394.07 in respect of the claim.

3. The Claimant do pay the Defendants costs of the claim, in the sum of £900 within 14 days.

 

Q4:Yes

Q5: Without a hearing

Q9 Claimant

Q10: Attached Witness Statement, and Statement of Case and Evidence

 

In the box for question 10 I will write a list of the documents I am enclosing to support my case, and attach the following (laid out correctly)

 

STATEMENT OF CASE:

I respectfully request that:

a) That claim 2ND CLAIM be struck out, as it is an abuse of process (CPR 38.7)

 

The claim number 2ND CLAIM is materially the same 1ST CLAIM. It is brought on the same material facts, copies of both applications attached.

 

The claimant launched case 1ST CLAIM in 2009, which I defended. I requested he supply evidence to back up his claim (CPR 18, Request for Information) but he was either unable to or unwilling to supply such. This left me with insufficient particulars to plead, and I was forced to submit an embarrassed defence. After a series of events, detailed in attached witness statement, the claimant withdrew his case 1ST CLAIM in July 2010.

 

b) That claim 2ND CLAIM be set aside, as the defendant was too ill to deal with this matter at the time

 

At this time he was unable to defend the case, or make an application for the case to be set-aside, due to firstly not receiving the original documentation, but more importantly the defendant was completely unwell at the time, and remains very ill.

WITNESS STATEMENT:

 

Much of the same "blurb" from earlier posts detailing exactly what has happened.

 

Are we getting there?? Please say yes!!

 

Blurred:)

[Andyorch]

Yes Blurred.

[citizenB]

Costs are anything that you have had to pay out in respect of defending the claim.

 

Time will be costed at LiP rates @£18.00 an hour

for research and putting your defence together.

reading and understanding documents provided to you, preparing your witness statements/defence.

 

you can claim postage, copying/printing costs,

any filing fees (although as the defendant I dont think you will have to pay fees)

travel to and from court - either by public transport or petrol/mileage and parking fees if you use your own vehicle.

I think if you have to take time off work you can claim up to £90.00 per day.

 

andyorch will be able to give you a better idea of what you can claim for.

[citizenB]

The Costs Practice Direction supplementing Parts 43-48

 

Minor amendments were made to streamline the process and minimise work and costs incurred in litigation about estates.

Further amendments were made to increase the rates that litigants in person can recover for financial loss through spending time on legal work. The rate was increased from £9.25 to £18.00

[Andyorch]

The following is a statement of the work done in the course of the proceedings. Where there is a charge for time spent, the amount of time recorded as spent represents the Defendants fair estimate of the amount of time spent.

 

Claimed (£)

 

1 Date

Particulars of claim

 

2 Date

Acknowledgement of Service

 

3 Date

Defence

 

4 Date

Defendant's Notice of Application

to strike out

PAID: court Fee £xx.xx

 

5 Date

Claimant's Notice of Discontinuance

 

6 Date

Hearing of Defendnt's application (vacated)

 

7 Work Done

Receiving and considering the Claim Form and Particulars of

Claim (3 hrs) £18.00ph

 

Searching for and locating the papers and other documents

relating to the 1993 proceedings (4 hrs) £18.00ph

 

Acknowledgement of Service (1 hrs) £18.00

 

Research regarding consumer credit law, law of limitation

law regarding relitigation (15 hrs)

 

Preparing Defence (4 hrs)

 

Preparing application notice (4 hrs)

 

Receiving and considering Notice of Discontinuance (1 hr)

 

Research regarding CPR 38.6 and CPR 44.12 (10 hrs)

 

Research regarding detailed assessment proceedings

and Litigants in Person (Costs and Expenses) Act 1975 (10 hrs)

 

Preparing bill of costs

costs proceedings (6 hrs)

 

time spent in telephone calls, letters and emails

written and received (4 hrs)

 

Time off work to attend Court (1 day £80.00)

 

Summary

Costs payable by the Claimant £XXXXXXXX

Disbursements (court fee)

 

Total costs payable by the Claimant £XXXXXXXX

 

Dated:

 

Signed:

 

 

Regards

 

Andy

[BlurredFX]

Immense!! Thank you one and all, I will get this topped and tailed tomorrow and then it's a waiting game I suppose - for notice of a hearing I guess.

 

I am sure I will be back with some questions, so thanks once more in advance.

 

Blurred:)

[BlurredFX]

Right-o Guys, I have got this lot typed up properly and I am ready to submit it to the Court. I will get it in then, submit costs schedule at the hearing which I presume we will have, and I will have to submit a request for the fee to be waived (due to income based ESA with Support Component)

 

Then I will do one last read through with fresh eyes and then I am going to go and photocopy a copy for the court and a copy for the Claimant (even though he NEVER extends me the same courtesy) and get them delivered.

 

Has anyone got any final thoughts, or is there something I have perhaps missed?

 

Obviously I will keep you all up to date as this progresses. I've been here before - I am just bracing myself for the unexpected now! Hope for the best, plan for the worst.

 

Blurred:)

[andydd]

Right-o Guys, I have got this lot typed up properly and I am ready to submit it to the Court. I will get it in then, submit costs schedule at the hearing which I presume we will have, and I will have to submit a request for the fee to be waived (due to income based ESA with Support Component)

 

Then I will do one last read through with fresh eyes and then I am going to go and photocopy a copy for the court and a copy for the Claimant (even though he NEVER extends me the same courtesy) and get them delivered.

 

Has anyone got any final thoughts, or is there something I have perhaps missed?

 

Obviously I will keep you all up to date as this progresses. I've been here before - I am just bracing myself for the unexpected now! Hope for the best, plan for the worst.

 

Blurred:)

 

Just a minor thing, when I handed in my costs schedule, the Judge was totally unaware that the LiP rate had changed to £18 and insisted it was still £9.25, so may be worth adding LiP rate £18 as per CPR admentment 57 as per here > http://www.lease-advice.org/decisions/other/s168pdf/427.pdf, I'll certainly be mentioning it next time I ask for costs !

 

Andy

[BlurredFX]

Hi Guys,

 

This has all been submitted now, well it was a good few weeks ago, but there has been back and forth over fee remission - think it should be sorted within the week.

 

But now, I am going to bake a few brains, or perhaps not. It's got me spinning, so if someone could perhaps help me crystalise the implications of what I have learned. (I kinda already knew, but it was at the back of my mind.

 

Right, to refresh: I have had an absent LL and hence the property has been managed incorrectly and without relevant authority etc. by a company appointed by the long-leaseholders a long time ago (before my time). and they tried to claim service charges at Court but they withdrew the case. Then, when I was in Hospital on life support, they went back to Court, under a difference case number and everything, and got Judgement in default, and tried for possession - and so the Mortgage company spewed forth about seven grand. It is that seven grand I am trying to reclaim.

 

In Jan/Feb of 2012, it seems the old absent Landlord sold his interest in the property (it was done correctly), and a new Landlord has taken over. The letters surrounding all this are scanned and cleaned of personal data ready to post somewhere to be viewed. I was in Hospital barely conscious at this point, so please forgive me if I have been remiss in not dealing with this more promptly. They came about while I was double checking all my paperwork with family.

 

These letters are detailed below:

 

A letter from the Old Landlords Solicitor saying he has sold the freehold etc. dated 5th Jan 12

 

A letter from New Landlord to Informal management Company, stating a big long list of issues for concern, including that the arrangement is not enforceable. 11 Jan 12

 

A letter from New Landlord to Me rasing similar concerns about the management of the block. 15th February 2012

 

A invoice from New Landlord to Me for all the back dated ground rent!! This is depsite the fact that the Court Claim I am resurrecting includes for Ground Rent. June 2012

 

I think the above help me, but you need to see them to fully appreciate them. I have tried to upload to the site, but the files are too large it seems. Is there an external site taht I can upload them to and link to??

 

This is a game changer, I think I know that. I think it helps my case no end, but you need to see them. I think it might be the other way, as they are happy for informal arrangements to continue?!?!?! But they have said it is not enforceable, so they are of that opinion and would not join the court action so....?!??!

 

I have removed all the personal data, so if someone could be so kind as to continue helping, just say where and I will upload them for the group.

 

Blurred:)

[andydd]

Hi.

 

Can you clarify that the CCJ still stands and that it hasnt been set aside yet ? (But youve put all the paperwork in)

 

Has the LL taken any action to try and recover the debt ?

 

Perhaps someone can confirm that the process is Set-Aside put in > CCJ removed > Case then goes to actual hearing > (Perhaps Blurred asks for Sum,mary Judgment as LL has no prospect of success ?).

 

Andy

[BlurredFX]

Hi.

 

Can you clarify that the CCJ still stands and that it hasnt been set aside yet ? (But youve put all the paperwork in)

 

Has the LL taken any action to try and recover the debt ?

 

Perhaps someone can confirm that the process is set-aside put in > CCJ removed > Case then goes to actual hearing > (Perhaps Blurred asks for Sum,mary Judgment as LL has no prospect of success ?).

 

Andy

 

Yes. I am sure i left a detailed response to this. However, Andy, you have seen the documents, as they made simply no sense with all the various details removed. If anyone else wants a look, let me know.

 

Right, well, the paperwork has been accepted, and the hearing scheduled for mid-January.

 

In the mean time, I want to submit some additional evidence (e.g. the letter where the Landlord says the current set-up is unenforceable).

 

Could someone give me some help on submitting this additional evidence to the Court, please?

 

Cheers,

 

Blurred:)