Another County Court Summons - HL - Advice Sought Please Help!!

[jody123]

All POSTS BY ME ARE WITHOUT PREJUDICE

Hi all….desperate…advice needed….

I've read “Count1”s thread (County Court Summons – Mortgage Shortfall – Advice Needed Urgently, please Help” and a friend has a similar problem...which he could really do with some help on points not covered by Count1's thread.... in brief.

Bought house with girlfriend in late 80s when they split in 91 he took on mortgage. Sometime in 94/95 (he's crap with dates and paperwork!) he moved out and lived with a girlfriend for a year or so before buying another property. He is sure he sold the first house so he could buy the second one, and has moved house buying and selling a couple of times since.

In January 2007 he got a letter stating that he owed a shortfall debt on the first house of c £15,892.28. This was the first he had heard about it. They were very arrogant on the phone threatening to make him bankrupt and then saying they would take the equity in his current home. He responded to the phone call with a follow up letter asking for everything to be in writing.

From January to September about 10 letters were exchanged where they insisted he owed the debt, and he by return asked for proof of same. He was told that the house was repossessed in August 1999 and sold in November 1999. He was unaware that the house had been repossessed, let alone that there was a shortfall debt, and when he asked for proof of the debt he was sent a “completion statement” for the woman to whom the house had been sold. When he questioned the validity of this he was sent another completion statement with a Halifax logo at the top. This paperwork said that the house was sold in November 2000 and yet the interest owing on the account ran from June 2000 to November 1999 (i.e. backwards and to the date when according to their first paperwork the house was sold). When he queried this he was sent an “amended” (note: not “corrected”) completion statement, again supposedly from the Halifax in a different layout format and with the dates of acquisition changed to August 1999. In this statement the interest ran from 1991 to 1999.

He repeatedly asked for proof of the debt and HL kept saying they had sent “proof”, but he certainly wouldn’t have parted with any money on the strength of the information they sent, particularly with the differing dates/figures/layouts etc etc..
In September he wrote direct to Halifax in exasperation asking them to send the proof of this debt as HL seemed unwilling (or unable?) to do so. He then heard nothing further until receiving a County Court Claim Form last weekend, filed by HL in the name of Bank of Scotland.

The “debt” has now risen to £23K in the court papers due to interest under section 69 of the County Court Act (1984) - the odd thing is that they are applying for interest on the shortfall from 27 November 2001… and not 17 November 1999 when they state the repossession occurred.

He has been to the Land Registry to see if he can prove when he sold the house, but they have “lost” the files for between 1993-1996.

So given this potted history I have a few questions….

What is his current position with regard to defending this claim? Particularly as he is sure that he sold the house and even though they have provided copies of a “repossession order” from another solicitors dated 1999 in his name. Given that he is sure he sold the property and has received no previous notification of this alleged shortfall he is inclined not to believe this copy.

Could the Halifax have stuffed up and assigned the person he sold the house to, to his mortgage account number? Or given the sale dates in the first completion statement the person who bought the house in 1999 given that they show interest as running from 1991 to 2001 and have charged interest from 2001 in the court papers?

Can they claim s69 interest given that even if the house was indeed repossessed in 1999 then the Statute of Limitation should apply to their ability to add interest to the debt if proven, but I’m not altogether sure on this one.

According to the 2nd “amended completion statement” the original mortgage was for £29,800, payments of 14.7K were made and interest was added between 28/6/91 and 17/11/99 (although the first statement said between 28/6/00 and 17/11/99) of £17.6K. It shows sale of the property as £23K, which was undersold in my opinion, in 1999 (although the first statement said 2000), with insurance costs, solicitors costs, etc etc being added. Am I right in thinking that assuming the house was indeed repossessed then under s24 of the statute of Limitations Act 1980 they cannot claim for the recovery of the solicitors fees, etc etc as they are time barred.

There would also appear to be one or two insurance policies on the original mortgage account. On the “completion statement” there are costs of £35 for “Additional Mortgage Security Premium” and a debit of £3578.98 and a credit of £1377.91 for “insurance premiums”. Should these not have covered any mortgage shortfall debt?

And, if the insurance did cover the mortgage shortfall debt would their trying to reclaim the money paid out on the insurance premium not now be time barred?

Could he also consider a counter claim for underselling the property in the first place?

Why are they claiming interest in the court papers from November 2001 – and not from November 1999 if they believe that they have a valid claim?

Sorry I know this is rambling, but I hope my query points are clear…if anyone can advise on the above I would really appreciate it.

I will also post a copy of the letter that was faxed and sent via recorded delivery today under this post, in which information under Section 18 of the Civil Procedure Rules, has requested. I think I’ve covered everything, but again if anyone knows of something else I should have asked and didn’t I’d be grateful for a heads up!

p.s. This is a fantastic website – it give’s one hope that things aren’t as bleak as the solicitors tell you on the ‘phone, and also some cold comfort that you’re not alone.

[jody123]

All POSTS BY ME ARE WITHOUT PREJUDICE
Here goes with the letter sent... to the solicitors asking for more information.


Friends address

10 December 2007

Solicitor’s Address
By Fax and Recorded Delivery

Halifax Customer services by Recorded Delivery
Bank of Scotland addressee to be advised by solicitors


Dear ******,

I do not acknowledge any debt to your company or to any company you claim to represent.

I have received a Court claim filed by your company in *** County Court reference number ********. Given that this matter is now the subject of legal proceedings, I request that you disclose to me, under Part 18 of the Civil Procedure Rules, the information and documents detailed in the attached document.

Under the Civil Procedure Rules; Part 18, I require this information to be furnished to me within the next ten days.

I must advise you that if any of the above is not forthcoming, then the matter will be reported to the Court as an attempt to frustrate proceedings and deny me the opportunity of filing a defence and counter-claim. Furthermore, a copy of this letter will be provided as evidence to the Court for an Order to enforce your compliance.

Please also advise me as soon as possible of a name and address for the Bank of Scotland to whom I should also send a copy of this letter and request, as it would appear that they are the ones now chasing this alleged debt.

Yours sincerely,

*******
cc. Halifax
att. Request for information




Request for Information Under Part 18 of the Civil Procedure Rules dated 10 December 2008

Under the above rules I request that you disclose to me all records you hold on me relevant to this case, including but not limited to:

a). A genuine copy of any Deed of Assignment, or other documentary evidence (equitable or absolute) that shows that you have any legal authority to pursue this matter on behalf of another company, or in your own right;

b). Certified copies of the mortgage application and mortgage deeds;

c). A full transcript of all transactions, with dates, including charges, fees, interest, repayments etc., on the mortgage account.

d). Full transcripts of all telephone conversations and any notes made in relation to telephone conversations by your company, or by any company you claim to represent.

e). Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

f). True copies of any Notice of Assignment and/or Default Notice that may have been sent to me, including documentary proof of its/their delivery.

g). Details of the sale of the property, how was it marketed, by whom it was marketed, how long was it marketed for, details of all offers, when was it sold, who it was sold to, what price it was sold for.

h). Documentary evidence of any building or remedial work undertaken at the property together with associated costs

i). Full breakdown with documentary evidence of all costs associated with sale of the property


/j). …

j). Documentary evidence of independent valuations done on the property

k).Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

l). Full details of any Mortgage Indemnity on the property, together with any claims made, dates paid etc..

m). Details of any collection charges added to the account; specifically, the date they were levied, the amounts, a detailed financial breakdown of how these charges were calculated, and what the charges covers.

n). Specific details of any fees/charges levied by any other company/agency in respect of this account and a detailed breakdown of these fees/charges, what each charge relates to and on what date these fees/charges were levied.

o). A genuine copy of your client’s Notification to me of their intention to pursue the alleged shortfall debt.

p). A copy of any Fair Processing Notice, as required by the Data Protection Act 1998.

q). A list of third party agencies to whom you or your client may have disclosed my personal data and a summary of the nature of the information you have disclosed.

r). Any other documents you seek to rely on in court.


Under the Civil Procedure Rules; Part 18, I require this information to be furnished to me within the next ten days.

[ChloeJane]

Hi there,

Just reading your post.

A part 18 request is for further information. I believe their lawyers won't comply with your request as much of what you have sought will be part of disclosure. While some of what is sought in part would come under this, to paint a picture of a part 18 request....

A request should be concise and strictly confined to matters which are reasonably necessary and propertionate to enable you the requesting person for the information to prepare your own case or to understand the case you have to meet.

From what you have asked... it is a Subject Access Request.

They will NOT reply to a Part 18 on the request, by law they don't have to. You need to send the request as SUBJECT ACCESS.

They will argue that what you have asked for is not relevant to you meeting the case that is against you. So rather than be dissapointed or to cover bases, send the subject access request with £10! Then you don't have to wait till disclosure and will have all you require.

Post back if you want more clarity. Just would hate to see such a cleverly worded document be picked up by clever lawyers that will delight in shooting at your self confidence. Your wording great....for a Subject Access.

CJ

PS If you have already sent it, then don't worry.

[jody123]

All POSTS BY ME ARE WITHOUT PREJUDICE

hi CJ,

Thanks for the info above, but I'm completely confused now....A court summons has been issued...in which I have another 4 days in which to ask for a further 14 days to prepare a case.

The letter I sent above I sent as part of disclosure - how can I assess whether a debt is owed, or the amount of that debt if I am not in possession of the above information. Furthermore how can I assess any counterclaim, particularly if I find that this has been disclosed to other banks/agencies without a proven debt...

If I send an S.A.R - (Subject Access Request) they do not have to reply for 40 days - and I need it within 10 if I am to make any kind of assessment or defence within the time limits set by the court.

I believe that much of the points in my attachment above are necessary in order to make this assessment - my friend was not even aware of the alleged shortfall debt until January 2007 - some seven an a half years after they state the property was repossessed. And around 12 years since he left the property.

Can they file these papers without providing any proof? And how can anyone provide a defence if they do not have any of the paperwork?

Whilst I am happy to send £10 and request a S.A.R - (Subject Access Request) (I assume that I send this either to the Halifax, or the Bank of Scotland - but am not sure which) - how do I get my hands on the mortgage account details, the sale of property details, the letters notifying me that there was a shortfall debt etc etc NOW...

Any advice would be appreciated.

Jody

[ChloeJane]

Hi, was waiting for your reply as I thought there might be some confusion.

Questions for you.

Have you filed your defence yet?

Can you post up a copy of their claim for me to see???

A part 18 request is often misused for what can and cannot be asked for. A part 18 request is to clarify issue or matters of facts that are in dispute, not for the disclosure of documents or to fish for information per say.

What you have asked for in various points, such as the documents themselves and certified copies should be provided as part of disclosure and you can request a disclosure statement from them now.

Just a few things.....

Firstly

You clearly are defending the matter and the Court will take into consideration the time factors and any extensions needed in time to allow you to defend. Courts are reasonable and you won't be expected to defend a matter without evidence.

Secondly
They cannot gain any Judgment without evidence or your right to view the evidence being used. So don't worry!


The way it works is that your defence is disputing the claim. The above is not required for you to defend at this stage. That happens with disclosure which is after you file your defence. Your Defence document, is about looking at their claim and addressing each point with a denial or admission. So the first thing, is to look at their claim.


** I have changed the post to appear clearer. At this stage, to understand the claim is step 1. You honestly don't need the above just yet to defend. **

[ChloeJane]

Sometimes it can appear confusing...so....

Lets just say I accused you of owing me money. The first step is to raise a claim. A claim is just words saying you owe me and here are my facts.

You have choices. Lets say you decide to defend. Remembering at this stage the claim is just words and an allegation.

You then have to address everything point by point in my allegation. Is it admitted or is it denied. Once you submit your defence, then the court will decide on disclosure and case management. That is when the disclosure statement and the documents you require are part of the process. They are then required to PROVE their case.

Many people do panick and think they have to have everything at this point. They don't. Untill you file a defence they are unsubstantiated allegations. Your defence document is everything.

When I first read your post, I thought you had filed your defence! I hope this makes it clearer. Right now, they are allegations only till you defend and say PROVE it. So going to edit part of the other post so things are taken in steps and made clearer.

P>S Home all day tomorrow so if you can post up the claim, I will look at all you have written and set out a defence. Promise it will be clearer then. It will be ready before your 4 days....trust me the processes can be daunting and not clear....once I can see the claim, and reply it will all be revealed and make sense.

[jody123]

All POSTS BY ME ARE WITHOUT PREJUDICE

Hi ChloeJane,

Thanks for the information - about as clear as mud now.... The problem is that my friend was not even aware that the property had been repossessed - he has since owned 3 other properties, been on electoral registers at each, and had no notification from anyone regarding an alleged shortfall debt.

He feels like he's between a rock and a hard place.... He can't admit an allegation when he did not know of it and he can't counterclaim for any underselling on the property, argue that the action/interest is statute barred, etc., without mortgage payment information

Why do they not have to comply with Rule 18 - from what I have read they are already in breach of CPR pre action protocols 4.2 a etc - is it that only a judge can make a request under Rule 18?

Sorry I know I'm a pain - will end up converting my degree to a law degree by the end of all this!

Regards,

Jody,

p.s. Here's my plan of action:
Tuesday 11 December: Send off an S.A.R - (Subject Access Request) to Halifax with £10 fee
Wednesday 12 December: file an Acknowledgment of Service - extends deadline to reply to 28 December.
Thursday 20 December see what information is forthcoming from HL.
Thursday 27 December file defence

I have already sculped what I could from Count1's defence. Will post both Once I've received a response/no response from HL....although I appreciate that this will be near to christmas and fewer people will be around, but I think it would be better if I could state in the response that I had no received a response to my request for further information.

I appreciate that this is not ideal - but I'm sure HL read these forums and I don't particularly want to give them a heads up on any defence before its filed - if that makes any sense whatsoever - or am I just being paranoid??

[Penfold92]

On a side point does he remember who the mortgage lender was? If he does he should be writting to them to ask what happened to the mortgage. Due to the dates, however, they may simply say we do not hold the records anymore, but it may be worth a try...

Penfold

[pt2537]

Originally Posted by jody123

Hi ChloeJane,

Thanks for the information - about as clear as mud now.... The problem is that my friend was not even aware that the property had been repossessed - he has since owned 3 other properties, been on electoral registers at each, and had no notification from anyone regarding an alleged shortfall debt.

He feels like he's between a rock and a hard place.... He can't admit an allegation when he did not know of it and he can't counterclaim for any underselling on the property, argue that the action/interest is statute barred, etc., without mortgage payment information

Why do they not have to comply with Rule 18 - from what I have read they are already in breach of CPR pre action protocols 4.2 a etc - is it that only a judge can make a request under Rule 18?

Sorry I know I'm a pain - will end up converting my degree to a law degree by the end of all this!

Regards,

Jody,

p.s. Here's my plan of action:
Tuesday 11 December: Send off an S.A.R - (Subject Access Request) to Halifax with £10 fee
Wednesday 12 December: file an Acknowledgment of Service - extends deadline to reply to 28 December.
Thursday 20 December see what information is forthcoming from HL.
Thursday 27 December file defence

I have already sculped what I could from Count1's defence. Will post both Once I've received a response/no response from HL....although I appreciate that this will be near to christmas and fewer people will be around, but I think it would be better if I could state in the response that I had no received a response to my request for further information.

I appreciate that this is not ideal - but I'm sure HL read these forums and I don't particularly want to give them a heads up on any defence before its filed - if that makes any sense whatsoever - or am I just being paranoid??

CJ is right in respect of additional disclosure under part 18 however in your case they dont appear to have disclosed anything except a claim form

If they have failed to attach documents which form the basis of their claim they are in breach of part 16, practice direction 16 in particular 7.3.

i would love to see them try and argue they dont have to disclose this to you. my only concerns with a Subject Access Request would be that the time frames are 40 days and there are ways in which they can legally frustrate matters under s7 Data Protection Act for example, they can ask for clarification of identity and i have known companies to leave it near 20 days before they ask for id which adds additional time to your 40 days


regards
paul

[jody123]

Morning Guys,

Am assuming penfold is a guy, but I don't know why...apologies I've been up all night researching and drafting a defence of sorts.

The Mortgage was with the Halifax....and he wrote to them back in September when letters to HL returned nothing....Halifax have not responded, but will need to check whether he sent that Recorded Delivery or not...

The only thing they filed was the form that contained particulars of the claim - there were no supporting papers...

Should I write to them again and ask them for the supporting papers under Section 16 practice direction? And prior to the deadline for filing the defence - anyone know how long they would have to reply within?

Can anyone answer on the following points raised in my first post ...

[i]
What is his current position with regard to defending this claim? Particularly as he is sure that he sold the house and even though they have provided copies of a “repossession order” from another solicitors dated 1999 in his name. Given that he is sure he sold the property and has received no previous notification of this alleged shortfall he is inclined not to believe this copy.

Could the Halifax have stuffed up and assigned the person he sold the house to, to his mortgage account number? Or given the sale dates in the first completion statement the person who bought the house in 1999 given that they show interest as running from 1991 to 2001 and have charged interest from 2001 in the court papers?

Can they claim s69 interest given that even if the house was indeed repossessed in 1999 then the Statute of Limitation should apply to their ability to add interest to the debt if proven, but I’m not altogether sure on this one.

According to the 2nd “amended completion statement” the original mortgage was for £29,800, payments of 14.7K were made and interest was added between 28/6/91 and 17/11/99 (although the first statement said between 28/6/00 and 17/11/99) of £17.6K. It shows sale of the property as £23K, which was undersold in my opinion, in 1999 (although the first statement said 2000), with insurance costs, solicitors costs, etc etc being added. Am I right in thinking that assuming the house was indeed repossessed then under s24 of the statute of Limitations Act 1980 they cannot claim for the recovery of the solicitors fees, etc etc as they are time barred.

There would also appear to be one or two insurance policies on the original mortgage account. On the “completion statement” there are costs of £35 for “Additional Mortgage Security Premium” and a debit of £3578.98 and a credit of £1377.91 for “insurance premiums”. Should these not have covered any mortgage shortfall debt?

And, if the insurance did cover the mortgage shortfall debt would their trying to reclaim the money paid out on the insurance premium not now be time barred?

Could he also consider a counter claim for underselling the property in the first place?

Why are they claiming interest in the court papers from November 2001 – and not from November 1999 if they believe that they have a valid claim? - this has been answered by Sequenci - apparently the are statute bared from claiming anything older than 6 years...

Anything anyone can offer by way of insight would be great....what I find coincidental is that count1's claim is around the same time frame, and for around the same amount - were HL given a bunch of statute bared accounts that they've decided to chase anyway - in the hope that ignorance is a money spinner?

Regards,

Jo

[ChloeJane]

Not having seen their claim, it is very hard to know what they are claiming and what facts they may or may not be relying upon.

That is where your defence comes in.

Lets say they are claiming the property was repossed as a point in the claim. Your defence would be, that the statement made by them is denied and you put precisely what you state as the reason why in your defence as clearly as you have done here. This is why the defence is the most important document.Whatever they claim, you can deny and challenge as you have put here a very good legal arguement. It is then up to them to prove it.

I understand posting it here is of concern especially with the defence for the reasons you stated, so perhaps it is acceptable to the moderators that someone views the claim or you post up the claim and the Defence under the circumstances can be checked and sent to you via another means? I know this is not the norm, but may be considered?

[sequenci]

Hello

I've had a very quick look through the details, do you know when the last payment was made against the mortgage?

[jody123]

Here's a topped and tailed copy of the claim...

In the **** County Court between Bank of Scotland plc (claimant) and *** (defendant).

1. by way of a Legal Mortgage dated *** 1991, **** charged the property konwn as and situated at ******* to the claimant.

2. the claimant obtained possession of the property on ** ** 1991.

3. On 17 November 1999 the claimant sold the property in exercise of its power of sale as mortgagee in possession off the sum of £23,000.

4. At the date of sale the amount outstanding under the mortgage was £38,892.28

5. The claimant apportioned the sale proceeds of £23,000 to the mortgage debt in the following order (i) interest; (ii) Capital. Immediately following the sale in point 3, in the premises due and owing to the claimant from the defendant amounted to the sum of £15,892.28. The aforementioned figure represented capital debt.

6. The claimant claims interest pursuant to secftion 69 of the County courts Act (1984) at the rate of 8% per annum for the period 29 November 2001 and 29 November 2007 in the sum of £7,624.68

7. further the claimant claims interest pursuant to section 69 of the County Courts Act (1984) at the rate of 8% per annum at a daily rate of £3.48 to date of judgment or payment if sooner.

8. The defendant is jointly and severally liable for the full amount outstanding under the mortgage as detailed above.

9. On the 17 September 2007 the Govenor [sic] and Company of the Bank of Scotland ('the Bank') was registerd under the Companies Act 1985 as Bank of Scotland plc. Also, on 17 September 2007, by virtue of setion 10 of the HBOS Group Reorganisation Act 2006 ('the Act'), Halifax plc transferred its undertakings (as defined in the Act) to the Bank. By virtue of section 12(19) of the Act, any legal proceedings by Halifax plc may be continued by the Bank.

AND THE CLAIMANT CLAIMS:

1. the sum of £23,516.96 pursuant to details in paragraphs 5 an 6 above;

2. interest pursuant to details in paragrpha 7 above; and

3. costs