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ndcdavis

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  1. It is usually very difficult to substantiate an allegation of sale at an undervalue. Can you show any defects in advertising etc? The advice above to try to do a deal is probably the best. Put together a careful statement of income/expenditure and assets/liabilities. This is essential to put an offer in context.
  2. I think you should also write to the solicitor and ask for a full copy of the file. It would be useful if you could post the actual exchange of letters about the agreement, but it appears that the solicitor failed to carry out your instructions and this has caused you loss. That means that you should be bringing a claim aganst the solicitor not a complaint. Much can be done at a distance as you will need an English Solicitor. external link removed Good luck
  3. My view is that you would benefit from taking legal advice on this - try to find a local solicitor who will give an initial free interview. Question: Were the solicitors who handled the sale the same solicitors who had handled the purchase? I ask this because it is not yet clear which form of joint ownership applied. You may need to make a formal complaint to the solicitor, but there may actually be a negligence claim. Think about some of the issues: (1) what agreement did you reach (if any) about the proceeds of sale? (2) It seems to me that the solicitors handling the sale may have had a conflict of interest, as it is clear that the iterests of the joint owners differed. This means that they should have advised you to take independent advice. (3) On a sale, secured loans are normally paid. If (as is suggested here) one secured lender agreed to release its charge on payment of a smaller sum then you would expect to see (based on your summary): net proceeds of sale = sale price LESS expenses of sale LESS amounts to redeem charges out of net proceeds of sale £5K to repay your parents then the balance divided 50/50 between you and your ex. (4) in your case, it seems that there was an agreement between you and your joint owner. The key to this is to understand what that agreement was. As a start, you need to ask the solicitor in writing for a full copy of the file.
  4. So you may need to concentrate on the limitation issues. Dont panic, and dont be bullied. Read through the documents carefully. Number the page with a pencil, then make notes of anything you think might be important, referring to the page number. The key may be to put together a full chronology to put this into context. Draw three columns for Date - event - page number. I am sending you a PM.
  5. The purpose of the defence is to summarise the issues, and a voluminous document does run a number of risks, but it may be something you cannot avoid in this case. You may want to consider whether you do want to run every point. There is however nothing to prevent you from setting this out as an either/or scenario: If the position is xxx then .... etc You can use headings to give this a structure, and start with a preamble, such as: 1. The Defendant is prejudiced in pleading to this matter because of (a) the passage of time and (b) the Claimant's failure or refusal to provide documentation and information requested. The history of this matter goes back to a possession order made in October 1994. The Defendant however does not have a copy of the Order made, nor a full statement of the account, nor... etc Your headings might be: Right to bring claim Abuse(s) of Process Money Judgment Sale at Undervalue Payments made Interest Good Luck! I'm away for a few days and will have problems both with internet connection and time, but you are in safe hands anyway! Rgds, Nick.
  6. The figure I am trying to estimate is the amount of the debt in Oct 1994. To deconstruct your figures (I am not an accountant) my best guess is that interest from 10/94 to 12/95 would have been about £4000. This means that the Judgment would have been for £38K +£18K - £12K - £4K = £40K. Costs etc would have been deducted from the sale price to form the net proceeds of sale. A final point: the amounts at issue here are significant, and I strongly feel you should ty to see a local solicitor who can help you.
  7. Ok. There are several things you need to consider: 1. the payments give you a problem; a settlement must be your lowest-risk option. 2. one of your biggest problems is that lack of information; it is important that you turn this round, and make clear that this is the bank''s problem: the bank is the claimant and it needs to prove its case. 3. You need to concentrate on your best points. Anyway here is a rough draft for comments etc 1. It is denied that the Defendant is indebted to the Claimant as alleged or at all. The Defendant understands that the Claimant sold and assigned any right of action it may have had against the Defendant to an unknown third party. The Claimant is put to strict proof that it has any interest in the proceedings. 2. Further or in the alternative the Defendant avers that in or about October 1994 the [?????] County Court granted the Claimant possession of the Defendant’s property at [address] and also entered Judgment to the Claimant in the sum of approximately £41,000. Due to the passage of time, the Defendant is unable to give the precise amount. 3. It is averred that these proceedings are an abuse of process, as they are proceedings to obtain a Judgment for exactly the same debt in respect of which the Claimant already holds a Judgment. 4. This abuse of process causes prejudice to the Defendant: a. Interest. Under s.24(2) Limitation Act 1980 interest is limited to 6 years. By seeking a fresh judgment, not only is the claimant claiming interest for the past 16 years, but it also seeks to charge interest for the 6 years following any new judgment, part of which is interest upon interest. b. A new judgment would be immediately enforceable. By contrast, a judgment older than 6 years can only be enforced following an exercise of judicial discretion. 5. If, contrary to the Defendant’s primary case, the Defendant is liable to the Claimant then the Defendant disputes the amount claimed. a. Pursuant to s.6(2) The County Courts (Interest on Judgment Debts) Order 1991, any payments to a Judgment debt are applied first to capital then interest. b. Pursuant to s.24(2) Limitation Act 1980 interest over 6 years old is statute barred. c. Interest is in the discretion of the court, and in the circumstances, the Defendant avers that the Court should not award years’ interest. d. The 1994 Judgment was in the sum of about £41000. It is understood from the Particulars of Claim that the net proceeds of sale were £24,000 and additional payments were received of £3000. Accordingly the capital outstanding under the 1994 Judgment cannot exceed £14,000. e. The maximum interest that can be applied is 6 years at 8% totalling £6,700. f. Thus the claim can be for no more than £20,700. 6. The Defendant avers that in its discretion no award of interest should be made. To award any interest would be oppressive to the Defendant as it amounts to interest on interest. 7. Further, at all material times in exercising its powers of sale, the Claimant owed the Defendant a duty to obtain the best price reasonably available and to incur only reasonable costs in relation to the sale. It is denied, alternatively it is not admitted that the sum of £24,xxx.xx represented the best price reasonably available on the sale of the property. A reasonable price would have been not less than £35,000.00. 8. In the circumstances the Claimant’s claim is denied I believe that the facts stated in this Defence are true.
  8. HI, I have to travel down to London tomorrow for a couple of days. I'll print out the thread to re-read on the train, then will try to post from my iphone. I still think that if a money judgment was made at the time of the possession order this is important because: 1. It means that there is no need for fresh proceedings, which are an abuse 2. any payments come off capital first - reg 6(2) The County Courts (Interest on Judgment Debts) Order 1991 at The County Courts (Interest on Judgment Debts) Order 1991 rgds, Nick
  9. This would appear to be an abuse of process. It's questionnable whether you should file a defence. You may be better just to issue an application to strike out (use form N244). As an aside, you probably should have ticked the box on the acknowledgment of service to say that you dispute jurisdiction, but it is too late now. The order you seek is: The claim be struck out as an abuse of process under CPR 3.4(2)(b). in the grounds section set the history out in detail: (1) The claim should bs struck out as an abuse of process. (2) On [date] the Claimant brought proceedings against me in respect of exactly the same matter under case number [xxxxxx]. (3) On [date] the Court ordered that unless the Claimant do file its allocation questionnaire by 3 December 2008 the claim be struck out. (4) The Claimant failed to file its allocation questionnaire by 3 December 2008 and the case was struck out by the court. (5) On or about [date] the Claimant applied for the claim to be reinstated. (6) On [date] the Court ordered that
  10. Marg, I couldnt find the start of the thread. Can you recall the circumstances of the repo? Do you still have a copy of the court order? If there has been no part payment or acknowledgement of a debt for over 12 years, then the claim may be statute barred, unless at the same time as a repossession order, the court also made a 'money judgment'. If the court did make a money judgment, then in my view, the new court case is an abuse of process. I have successfully argued this on several occasions. see for example http://www.anlaw.co.uk/downloads/files/Allaince%20and%20Leicester%20v%20Reynolds.pdf It would be useful to see the text of the claim form and particulars of claim - can you load these? Nick.
  11. You may want to pass this decision to your solicitor... http://anlaw.co.uk/downloads/files/Allaince%20and%20Leicester%20v%20Reynolds.pdf regards Nick.
  12. This assessment of your means will have had to be as a result of a CCJ. What is the date of the CCJ. If it was at the same time as the repo in 1995 then the lender may be out of time to enforce. If it was later: you need to find out more, as you may be able to have this set aside if you had no notice and may have had a defence. N.
  13. You also need to try to get a copy of the original possession order. If that included a judgment for the amount due under the mortgage then the claim against you should probably be struck out as an abuse of process. Here is a report on a case I have run on this: http://anlaw.co.uk/downloads/files/Allaince%20and%20Leicester%20v%20Reynolds.pdf Hope this helps. Nick.
  14. The next stage is that the Court will consider the allocation questionnaires with the claim and defence. The Court will either set a date for a case management hearing, or will give orders to get the case ready for Trial. For the moment, just write back to the bank to thank them for the documents but to point out what is missing. Which Court is the case in?
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