Managing Agent leasehold Property 4th Court Claim same issue.

[BlurredFX]

Bump.

 

Could someone please give me a bit of guidance on how to lay out my Defence and Counter Claim please??????

 

Ta

 

Blurred:)

[Andyorch]

Plenty of defences and Counter-claims in the legal Successes forum Blurred.

 

http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?190-DCA-Legal-Successes

 

Andy

[BlurredFX]

Right Guys,

 

Thanks for the advice, I should read things more slowly, and panic less, but I am getting somewhere now. I have drawn up the following skeleton argument to submit with my Defence (which is an embarrassed defence), as well as some other evidence, but fr now this is what I have done. I would love your comments.

 

SKELETON ARGUMENT

 

In the Matter of

Claimant:

-v-

Defendant:

 

1. This argument is intended to elucidate and clarify the issues that appear to the defendant to be hampering the speedy and equitable resolution of this court case, in order to expedite the management of the case. It is intended to be read in conjunction with the defence I have submitted (as part of 9DC), and re-submited as part of claim 1AB

 

BACKGROUND TO THE CASE AND PREVIOUS LEGAL ACTION

 

2. The claimant brought a case (9DC) against the defendant on (INSERT DATE), claiming the sum of £$9879. Having no knowledge of any monies due to the Claimant, the Defendant submitted a CPR£&*£&£

 

3. Initially the Defendant requested (in the form of CPR 18 from the Defendant, Request for Information) to supply evidence to support his claim. 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.

 

4. A hearing was scheduled for the 15th Feruary 2010. The Claimant was also unable to provide any valid evidence prior to the hearing or 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 had simply received a covering letter and defendant 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, as he had failed to establish that any money was owed.

 

5. The hearing was adjourned pending informal resolution by the parties, with both parties having the option to restore the hearing by the 7th April DATE CHECK. The claimant failed to produce any further documentation to satisfy the Defendant of his liability and the Defendant made no payments to the Claimant.

 

6. The Claimant elected to restore his Claim in early April 2010, and his application to restore was granted by the court on the 15th April 2010.

 

7. The Claimant then WITHDREW his case, apparently informing the Court that I had settled the matter and I had paid the claim in full. THIS IS NOT THE CASE AND I NEVER MADE ANY SUCH PAYMENT AT THIS TIME TO THE CLAIMANT OR ANYONE ELSE!

 

8. In August 2011, knowing the Defendant was seriously ill in Hospital he brought a new case, 1AB, which has since been set aside.

 

9. This defence and Counter Claim is intended to have the Judgement completely struck out, and monies claimed threatening Forfeiture to the Mortgage Company, apparently under s168 of The Law and Property Act 1925 refunded, with interest. (evidence supplied)

Blurred:)

[citizenB]

I will send out S.O.S. to andydd and andyorch for you - this looks to be way outside of my knowledge.

[andydd]

I think i need a re-read of the whole thread but it does strike me that havnt a hope. Is there anything they have done right or do they have any evidence that any debt is owing ?

 

Are you going for a summary judgment ?

 

Andy

[andydd]

Ok..had a quick re-read.

 

1. What is their claim for ? Is there a current claim for a debt they allege you owe (I assume for service charges)

 

It appears that 'they' are not the LL or managment agent mentioned in the lease (or assigned to) and therefore have no right to ask for payment, case closed.

 

Or, that they havn't served valid demands, summary not attached or font size wrong, etc

 

You havnt mentioned any of these points in your defence.

 

The other defence is that starting, discontinuing, etc is an abuse of process and you request it be struck out. (No need to argue anything further, this wont be summary judgment at this stage, so forget that bit).

 

2. I assume your counterclaim is for a refund of the money paid by the mortgage company, again, you need to show that this amount was never legally owing using arguments above, therefore money should be refunded, perhaps the mortgage company could be involved here but that no doubt would confuse things, would be interesting though if you had response from them, I believe that they shouldnt pay without your permission, perhaps ask them what are their guidelines for this scenario.

 

3. Defence and counterclaim is a bit untidy, dont try and use legalese unless you are 100% comfortable with it.

 

I dont quite understand why so many chances have been given for resolution, etc..perhaps you should of got in earlier with a summary judgment application to try and end it all earlier and put a stop to it.

 

Andy

 

2.

[BlurredFX]

Ok..had a quick re-read.

 

1. What is their claim for ? Is there a current claim for a debt they allege you owe (I assume for service charges)

 

It appears that 'they' are not the LL or managment agent mentioned in the lease (or assigned to) and therefore have no right to ask for payment, case closed.

 

Or, that they havn't served valid demands, summary not attached or font size wrong, etc

 

You havnt mentioned any of these points in your defence.

 

The other defence is that starting, discontinuing, etc is an abuse of process and you request it be struck out. (No need to argue anything further, this wont be summary judgment at this stage, so forget that bit).

 

Firstly, they are not authorised to collect it. I have evidence of this. Further, the demands are all wrong, and the summary of rights within them are certainly not size 10 point.

 

2. I assume your counterclaim is for a refund of the money paid by the mortgage company, again, you need to show that this amount was never legally owing using arguments above, therefore money should be refunded, perhaps the mortgage company could be involved here but that no doubt would confuse things, would be interesting though if you had response from them, I believe that they shouldnt pay without your permission, perhaps ask them what are their guidelines for this scenario.

 

You assume correctly. I have an annual statement from the mortgage company with the amount on. I can't find but will have another look for the letter they sent saying they were going to pay it.

 

3. Defence and counterclaim is a bit untidy, dont try and use legalese unless you are 100% comfortable with it.

This bit (todays earlier post by me with draft skeleton argument) isn't supposed to be the Counterclaim bit. I was going to do that separately. The document I have produced it intended for use to condense it as much as possible for the DJ.

 

I don't quite understand why so many chances have been given for resolution, etc..perhaps you should of got in earlier with a summary judgment application to try and end it all earlier and put a stop to it.

I couldn't defend the second claim as I was nearly dead. Initially, they went for me, couldn't substantiate their claim, withdrew the action, and then told the Court I had paid it. I hadn't paid anything, but I didn't know they told the Court I had?!?!?!?! Then, 12 months later when I was really ill, and known locally to be really ill and in Hospital fighting for my life, they sneaked a claim through, got a Judgement in default as I didn't respond, and took the money from the Mortgage company before I was even conscious enough to read the letters! For what it's worth, I am still ill enough to get into the DWP Support Group without the need for a medical - I am far from well, still.

 

Their behaviour has made it really hard to get anyone to take me seriously on this case!! People assume I am talking rubbish, but this is really whats happened!!! And I have the documents to prove it I reckon. (Andy, I think I have emailed some of them to you previously, and I have some more now)

 

I suppose I lay my counterclaim out in a similar way to the skeleton argument? I think that's tomorrows first job.

 

Cheers man,

 

Blurred:)

[Andyorch]

Hi Blurred responding to your PM.

 

Taking all the above into account I was under the apprehension,and forgive me if I am wrong, that you had to submit a defence/counter claim not a Skeleton Argument...skeleton arguments are used to summarise and support your defence/counter claim at trial.

Without going through all the thread what exactly is their claim based on?

Where is their P.O.C?

how did they get their money?

 

Your counter claim is to request payment from the default judgment?

 

Regards

 

Andy

[andydd]

Hi.

 

its all coming back to me.

 

As Andyorch has said dont bother with calling it a skeleton argument, its just a Defence, no need to confuse the issue.

 

I assume that the previous defence reffered to deals with the fact(s) that the service charges are not recoverable at all, although Id spell it out again for the Judge, I also prob wouldnt go over old ground just spell out the facts as it stands now.

 

Something like.

 

1. The claimant has no right to collect the debt (show the lease which I assume doesnt name him, title deeds from land registry which I assume show that the freehold hasnt been assigned to him - (you can get these £3 online) and the letter where he agrees with this.

 

2. The current case is abuse of process, its second attempt and/or its another case after old one discontinued but without courts permission.

 

3. That the debt is not payable sue to non-compliance with Summary of Rights and any other laws (maybe s47/s48 of L&T act 1987 that relate to demands that must show landlord name & address) or if any provision in lease isnt complied with.

 

4. Even if the amounts are payable you could go down the 'reasonableness' route and ask an LVT to decide on sums involved.

 

Counterclaim

 

1. The amount paid by mortgage company was not payable because of 1 or 3 above. The mortgage company didnt ask you for permission to pay, they just paid up !

 

Thats the basics of it, correct ?. have I missed anything important ?. Make sure you list all the correct statute laws, any relevant case law (although don't really think any is needed) and previous cases and their outcomes/judgments.

 

Costs.

 

Might as well go after them, I recall Andyorch put up a great post dealing with this a while back

 

Andy

[andydd]

It would help if would could see their actual POC, (names redacted of course).

 

Andyorch. they got their money through mortgage company, is situations like this, the LL lets it known that money is allegedly owing and an eventual forfeiture is possible and mortgage companies pay up, protecting their investment as well.

 

Andy

[Andyorch]

This is your area Andy but are you saying that a mortgage company will make payment to any LL/Company that requests payment without agreement for services...then add the payment to the mortgagees balance?

 

Regards

 

Andy

[andydd]

This is your area Andy but are you saying that a mortgage company will make payment to any LL/Company that requests payment without agreement for services...then add the payment to the mortgagees balance?

 

Regards

 

Andy

 

Yep, thats about it. In theory its not for non-payment its for breaching the lease, but the lease will make non-paymnet a breach..as are many other clauses leases may contain, hanging washing out of windows, playing loud music, not having carpeted floor, painting door wrong colour !..and keeping pets and sub-letting are very common

 

There are no set guidelines as to how this happens, some appear to just pay up, some maje sure there is lots of correspondence with leaseholder asking them their views, etc.

 

Realistically they should only pay up if the landlord has followed the S146 route and got court/LVT admission..but some companies seem to want to pay up instantly !....of course sometimes a leaseholder is happy with this and is skint and doesnt dispute it.

 

Andy

[BlurredFX]

This is your area Andy but are you saying that a mortgage company will make payment to any LL/Company that requests payment without agreement for services...then add the payment to the mortgagees balance?

 

Regards

 

Andy

 

Just to add my tuppence, yes andyorch, they do! I have looked on other forums and that type of thing and it happens. As andydd says, they are protecting their already secured investment - forfeiture means that the fkat goes t the LL and the leaseholder and their mortgage cmpany sort out the balance, in theory.

 

you had to submit a defence/counter claim not a Skeleton Argument

 

You're right. I think it is worth submitting, maybe call it a witness statement!?!?

 

When I went into the hearing for the set-aside the DJ warned me that he had seen a handful of these cases go the way of the Defendant over his time, and I was very clear that I understood what he said, but that I was clear of my case. Once I had stated it, he wasn't really willing to consider it that day, and gave me the 28 days for C&CL.He certainly had much more sympathy towards the end of the hearing as they didn't turn up and I was very clear where I stood on the issue - they had no right to collect!! He seemed taken aback, but then so are you all!! They are just a law unto themselves.

 

I had thought about asking for an LVT, but I think that should be if it starts going against me.

 

As an different issue, I am very ill, (DWP Support Group) and have been struggling with time. Is it possible to ask for an extension if needs be? It has to be served by Wednesday afternoon.

 

I will get the POCs up.

 

Cheers,

 

Blurred:)

[BlurredFX]

Your counter claim is to request payment from the default judgment?

Correct

Edited February 8, 2013 by BlurredFX
bad quoting

[DonkeyB]

You need two main elements – your defence is your answer to their pleaded case. You must refute every point, with the correct legal argument and references.

 

Your witness statement is your version of events as they happened, your chance to put flesh on the bone and say how these events have impacted on you.

 

A skeleton argument is simply a summary document for the judge that can, mostly, be presented on the day or the day before the hearing.

[BlurredFX]

try this

 

Link removed

Edited February 9, 2013 by ims21

[BlurredFX]

or this

 

Link removed

 

Edited February 9, 2013 by ims21

[BlurredFX]

You need two main elements – your defence is your answer to their pleaded case. You must refute every point, with the correct legal argument and references.

Please see the POC I have posted up. Basically they are saying they are teh Lanlord and entitled to collect, I am not. I have it in writing fro the current LL that they CANNOT collect for rent, and that the agreements in place for service charges are unenforceable.

 

Your witness statement is your version of events as they happened, your chance to put flesh on the bone and say how these events have impacted on you.

I think I might submit the above skeleton argument as a Witness Statement you know. It seems to read easily enough. What do you think?

 

A skeleton argument is simply a summary document for the judge that can, mostly, be presented on the day or the day before the hearing.

I'll go with the day before maybe, if I don't submit it as a WS.

 

Donkey, you have a wonderful way of simplifying things. I consider myself reasonably bright, but these things can get right on top of me. Thank you.

 

Edited February 8, 2013 by BlurredFX
bad quoting again

[Andyorch]

Uploads unapproved personal information still showing...if you can cleanse them and re upload Blurred.

 

Regards

 

Andy

[BlurredFX]

Sorry, wrong ones. Try these

Edited February 9, 2013 by ims21

[DonkeyB]

Suggest you disable that link – personal info blatant!

[ims21]

Post #95 link removed....please cleanse more effectively and re-post.

 

Thanks DB

[citizenB]

You should be able to post your documents as pdfs.. follow the instructions below.

 

Do you have microsoft paint for editing ?

 

Dx100 – Instructions on uploading pdfs

scan the required letters/agreements/sheets

as a picture file

remove all pers info inc barcodes etc using paint

but leave all figures and dates.

goto one of the many free online pdf converter websites

convert the image to pdf format.

or ir you have PDF as an installed printer drive use that

open a new msg box here

hit go advanced below the msg box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

NB:you can set where it goes in the post by hitting insert inline.

the hit reply button

[ims21]

Couple of other links removed too since personal info can be made out.

[BlurredFX]

Ok folk, sorry for being a pain, but I believe the atttached is what we are after?? I hope so!