Shortfall Court Summons - URGENT help needed please!

[citizenB]

Did you pay for this insurance ?

 

 

 

 

Yes..£163.65

 

Hmm, now I wonder who would know how this works. Surely if the company claimed the shortfall on the insurance.. then they have been a bit naughty.. my thinking anyway. I will ask around.

[inafix]

Maybe not, have a look this:

Mortgage indemnity: a borrower's guide

 

It seems it only covers the lender NOT the borrower (which is the opposite of what we were told when we paid it!)

[inafix]

I hope everyone has a nice easter break.

I'm also hoping that someone will be logged on to help me with my defence. I have been given until 4pm Tues. 6th to hand it in at the court office. Thanks guys.

HELP PLEASE!

[citizenB]

I will be here all day on Sunday.. will try and help out then, ok ?

[Guest MamaG1]

Good luck with it all Inafix.

[iconoclash]

Hi Inafix - good luck with it. Looks like most of what I would comment about has been done - dont know if you can counter-claim re the original figs. and if you did maybe this could include a disclosure request and that would take the wind out of their sails! - get all the unfair terms and unreasonable tests going too - anyone think this a possible route?

[citizenB]

Maybe not, have a look this:

Mortgage indemnity: a borrower's guide

 

It seems it only covers the lender NOT the borrower (which is the opposite of what we were told when we paid it!)

 

 

 

Extract from the link above...

 

The fact that your lender has mortgage indemnity insurance does not mean that you are less likely to be pursued for the shortfall than if no mortgage indemnity arrangements are in place. In both cases, your promise to repay all of the money you owe applies. In England, Wales and Northern Ireland, a lender legally has 12 years in which to contact you to begin the process of obtaining repayment of the shortfall; this period is usually 5 years in Scotland. Howevever, CML members had voluntarily agreed that they will start this process within 6 years of the property being sold.

Some people say that mortgage indemnity covers me and enables me to escape from negative equity. How can I be sure that this advice is wrong?

 

Some advisors have misunderstood the nature of mortgage indemnity and the wordings of the mortgage indemnity policies, taking them to mean that mortgage indemnity covers borrowers. However, it is very clear, and has been confirmed by various cases in the courts, that this is not the case and that mortgage indemnity covers only your lender and does not affect your personal promise and responsibility to repay the loan.

 

This gives me a little hope for you.

 

a) You were advised that the indemnity policy covered you - wrong advice

b) Do you know if the original mortgage company is a CML member?

 

 

 

 

[citizenB]

Mortgage Indemnity Insurance

 

You also need to check whether you had a Mortgage Indemnity Guarantee (MIG) on the house. This is an insurance that covers the mortgage lender against a loss. You would usually have paid it out as a lump sum when you first bought the house, or it could have been deducted from your mortgage advance at the time.

 

You need to check that your mortgage lender has made a claim on any insurance available. This could limit the amount you owe to the mortgage lender although the insurance company can ask you to pay back the amount they pay out to the mortgage lender. The insurance company sometimes asks the lender to collect their share for them. From 31st October 2004 your lender must inform you in writing if your mortgage shortfall debt may be pursued by another company.

Some people argue that the indemnity policy should cover the borrower for any shortfall as they paid for the insurance in the first place.

 

This is a complicated area of law .

Following a case called Woolwich v Brown 1995 the Court of Appeal has decided that generally mortgage indemnity insurance only covers the lender and not the borrower. We suggest you phone us if you want further advice on this.

 

Did your mortgage lender advise you that someone else would be pursuing you ? Or is it the original lender still pursuing via the DCA ?

[citizenB]

Fix,

 

I don't envy you this case. The payments made since December 1997 culminating in the one made April 2007 has the effect of renewing the 12 year limitation period for the recovery of the capital which accrued in December 1995. These proceedings were therefore commenced within the limitation period in my view.

 

I have sought to argue that the payments you made were not freely given but were payments made owing to threats etc. What constitutes a threat is debatable. If I threaten you saying 'give me the £10.00 you owe me or I'll take you to court', that is not a threat for the purpose of duress or undue influence. Saying 'give me the £10.00 you owe me or I'll snatch your car' on the other hand probably would.

 

Likewise, the payment may be induced by false promises, thus saying 'give me the £10.00 you owe me and we'll forget about the other £10.00 you owe me' might be employed to achieve a release from the obligation to pay the other tenner (heavy stress on 'might').

 

I have drawn up a form of defence which I'll run through with you.

 

To be entitled to pursue the claim it will necessarily be a condition of the mortgage that a right to pursue you is reserved. I fully expect there to be such a clause. However, to throw the cat amongst the pigeons the draft does not admit the existence of such a clause, throwing the onus of proof on to the bank.

 

The draft also contends, adopting your £35K valuation, the bank sold it at an under value. You may care to obtain a report from a survweyor as to the market price of the property in December 1995. In the absence of evidence showing £24,xxx.xx was evidently an under sale, the bank is likely to be believed that this price was the best it could reasonably achieve. Nonetheless, the Defence throws this in issue placing the burden of proof on to the bank.

 

Finally, the defence argues the award of interest, being discretionary, should be disallowed.

 

What concerns me is that unless this case is defended the bank will obtain a judgment for some money which it will then seek to secure on your house. You don't want that.

 

I think you must now give very serious consideration to negotiating a deal with the bank.

 

DRAFT / DEFENCE

 

1 Save that no admissions are made as to the existence of a term or condition in the mortgage deed entitlng the Claimant to bring the claim now sued upon, paragraphs 1, 2 and 3 of the Particulars of Claim are admitted.

 

2 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.

 

3 No admissions are made as to paragraph 4 of the Particulars of Claim and no admissions are made as to the the manner in which the Claimant apportioned the proceeds of sale. It is denied that on sale of the property there was then due and owing to the Claimant the sum of £24,xxx.xx.

 

4 The Claimant's claim to be entitled to discretionary interest on the sum of £24,xxx.xx under County Courts Act 1984 section 69 is denied. Alternatively, the Defendant will contend at the trial of this case that in the exercise of its discretion the Claimant's claim to statutory interest should be refused in whole or in part.

 

5 It is denied that the Defendant or any person with his/her authority made a payment to the Claimant in reduction of the capital sums now sued for in a manner which would have the effect of giving rise to a fresh accrual of a cause of action for the benefit of the Claimant. Alternatively, that there was a payment by the Defendant or a person with his /her authority and made voluntarily and of his or her own free will with such effect. Such payments as were made (none being admitted) were payments made owing to the representations and/or the duress an/or the undue influence of the Claimant, its servant and/or agent and upon the Claimant and/or its servant or agent falsely representing that (here give particulars of any representation etc inducing payment).

 

6 In the circumstances the Claimant's claim to be entitled to £x and interest thereon is denied.

 

Dated:

 

Signed:

 

x20

 

 

All I have been trying to do is to find out the Why's And Wherefore's of how the original amount owing had been calculated, due to the underhanded way in which the DCA were trying to claim back the debt.

Otherwise, I would still be making payments to them. Therefore, it didn't need to go this far.

 

If no 'enforceable documentation' was forthcoming from two DCA's, why did the 3rd one issue court proceedings? What documents do they have to produce to the court?

 

 

Just bringing stuff forward so I dont have to keep shunting backwards.

Edited April 4, 2010 by citizenB
answered my own question so deleted it :)

[citizenB]

Thanks slick.

 

Solicitor and myself attended court and argued case should not be reinstated, but judge said it was the fault of Hbos sols., and not Hbos themselves, who were to blame for discrepancies, so case will go ahead.

Judge ordered that Possession Order must be produced within 14 days or case will remain struck out.

 

Judge also said that I had a strong defence against them claiming back all the interest.

 

 

 

 

OMG!!!

Have today received a 'new' Claim Form from the court. (same particulars of claim as before (actually for slightly less?) and the same sols.)

Can they do this???

Court ordered that the claim remains struck out as the claimant has not complied with the conditions for reinstatement imposed by the order of 10th March 2009, as of 1st April 2009.

They did not pay the court fees nor my solicitors fees for attending court.

What should I put in the acknowledgement of service?

PLEASE HELP, I'm at a loss and really can't afford the solicitor again!

 

The court costs and my solicitors costs were paid AFTER the final strike out. They said it was sent in time, but the court must not have received it! The judge accepted this!

I did NOT receive a copy of the possession order, but the judge said they do not need one?

 

 

This certainly needs to be pressed home. Nick seems to think that the original possession order is important. The original hearing the claimant was ordered to produce this within 14 days.

 

Do you have evidence by way of documented telephone conversations or letters from DCAsthat could confirm harassment or be construed as intimidation..

 

 

 

As these are now new proceedings, I was hoping to use my original defence and add a few extra bits.

 

BRIEF HISTORY:

08/93 Vacated property.

10/94 Repossession Order granted?

12/95 Property sold

09/97 Contact from DCA(Logic group). 1st payment made

Did you only make one payment of many to this company ?

04/06 Harrassment from DCA(now EOS Solutions) to pay in full.

Contacted CAB and National Debtline.

DCA in breach of 10+ OFT guidelines. Last payment made.

 

Why did they suddenly demand payment in full if you were already paying them ?

Account in dispute. DSAR requested. No compliance

Account closed and marked as 'written off' by EOS and file

returned to Halifax.

11/07 CIS Services instructed to reclaim balance.

DSAR requested.

01/08 DSAR part received.

Non compliance letter sent to HBOS. No reply.

02/08 Non compliance letter sent to CIS. No reply.

04/08 HL Solicitors instructed to reclaim balance.

05/08 HL request for F&F settlement.

Rang requesting copy of possession order(as instructed by Nat.

Debtline) Told would send!

06/08 HL Final Notice

Rang requesting copy of possession order. Told court proceedings

already issued.

08/08 HL letter before action.

Rang to delay proceedings until requested doc received. Told

proceedings already issued.

09/08 county court claim issued.

CPR pt. 18 request for docs.

10/08 Defence filed.

11/08 Court Order to file aq + fee by 3rd Dec.

12/08 Case struck out. Claimant failed to comply.

02/09 Application to Reinstate

03/09 Court Order claimant to pay aq fee, my sols. fees and send copy

of Possession Order.

04/09 Case remains struck out. Claimant failed to comply on all 3 counts

02/10 New court proceedings issued.

03/10 Application N244 to strike out as abuse of process.

03/10 Application denied..................

 

 

I think you could probably use your original defence but pad it out with the fact that this is a second claim because the first one was struck out as per judges orders on DATE.

 

That the original possession order has not been produced as per judges orders of DATE

 

That it is relevant as you need to know whether there was a money judgement and put in Nicks reasons why - posts 20 and 95

 

You believed the indemnity insurance covered you and only recently discovered not.

 

You would also like to know if the original lender has claimed on this.

 

From the date of the sale of the house, there is a 2 year period before anyone contacted you ie the DCA

 

Were you told when the house was sold and given a breakdown of the figures at that time ?

[iconoclash]

Hi - general note here - are the solicitors still the same for them? check to see if they have properly notififed the court of any change (theres a specific notice they have to use) and cannot enter the hearing at all if not done, also thinking about the shortfall situation and the insurance - surely if the lender has already had the shortfall payment from the insurer they cannot then recover ditto from consumer - wouldnt this be a double recovery???

[inafix]

dont know if you can counter-claim re the original figs. and if you did maybe this could include a disclosure request and that would take the wind out of their sails! - get all the unfair terms and unreasonable tests going too - anyone think this a possible route?

Anyone point me in the right direction re this?

Do you know if the original mortgage company is a CML member?

Unsure? Original mortgage was with Leeds Permanent Bld. Soc., which merged with Halifax in 1995, then in turn merged with BOS in 2001.

Nick seems to think that the original possession order is important

National Debtline seem to think so too!

Do you have evidence by way of documented telephone conversations or letters from DCAsthat could confirm harassment or be construed as intimidation..

I have a transcript they sent which says on 21/02/07 they advised me to get a consolidation loan, and took a £50 debit card payment. In fact they threatened me with bailiffs and said I would have to sell my home and they needed an immediate payment to stop proceedings.

I was in tears when I made the payment!

It also shows calls made twice a day(unanswered) from 26/04 to 06/06 until I sent a letter requesting everything in writing only and thaat CAB were now dealing with the case (who they actually refused to speak to on the phone!!)

Were you told when the house was sold and given a breakdown of the figures at that time ?

NO. I have no paperwork relating to the original claim for payment.

Did you only make one payment of many to this company ?

I made monthly payments (never missed one) over ten years.

 

Why did they suddenly demand payment in full if you were already paying them

They said the debt would never be paid off in my lifetime!!!

Edited April 4, 2010 by inafix
addition

[iconoclash]

Hi - Inafix - all these things about calls and harrassment - include all of this as they are claiming from you it is they who have to prove otherwise - the judge will be able to take everything into consideration: their 'behaviour' and non-compliance are all very relevant. sorry I hope it is not confusing but i am throwing in ideas to see if we can hone it down some more - i admit i am no expert but have had judgements set aside before re cca etc so trying to see what the overall position is too. I'm getting the impresssion that the first posession order was a foul up by the court anyway but dont know if it is too late to rectify - certainly think that the invisible figures and paperwork imply there is stuff they dont want you to know - hence my comments about forcing disclosure - doesnt look like the DSAR was ever complied with - is that right?

[inafix]

doesnt look like the DSAR was ever complied with - is that right

Not fully! HBOS sent me armfuls of microfiche copies?, mortgage application, and other other unintelligible computer generated copies

and a covering letter which said 'Please note, HBOS plc is not oliged to supply records held in paper format as they do not form part of a relevant filing system.'

[iconoclash]

Hi - I just dont know what these guys are relying on in this case when it is so old??? - if they cannot even produce the original order or full details of the monies claimed including fees, charges, interest etc, surely you would need to know what theyve had from the sale of the property, actual evidence that is, and what the account looks like - they seem to be treating this as an open cheque which is against your rights totally. Not having this information also prejudices your own defence. I think that they judge will not allow this new application and if you get it struck out again you can ask the judge to add a provisio that it not be brought before the court again without xy and z being available. (I have done this myself and a judge specifically ordered Universal Credit not to bring their claim back into court - a 15 yr old contract was involved). Another thing you might want to look at (should they get a hearing) is Misrepresentation.

[rhodium78]

Hi, citizenB, I am here at your behest…

 

This is my understanding:

 

1.) You had an agreement to pay the shortfall and they demanded full payment. You refused but did you withhold payment then or carry on the payments as normal? If you carried on payments, then there is no case as you are still making payments.

2.) Doesn’t matter if the bank sold it at a value much less than you think it was worth or valued externally (Wilson v Halifax plc [2001])

3.) I still don’t understand what you are disputing or if there is any dispute? From the looks of it, it seems the end goal is to stop a charging order put on your property if they get a judgement. If that is the case, then you take each battle as it comes as from reading your thread you would have more chance against the charging order than this application but let’s see.

4.) This is going to full trial with no application for summary judgement?

5.) You need the copy of the original charge because you need to determine the conditions of the appropriation, hence whether the Claimants can use the proceeds gained from the sale of the property towards interest or capital. In the context of it not being present in the charge, then common law states that it goes towards interest.

6.) You will need a copy of the original mortgage agreement with all T&Cs and to scrutinise it to determine whether the payments were made to the interest or the principal.

7.) Bristol & West plc v Bartlett and another; Paragon Finance plc v Banks; Halifax plc v Grant [2002]: A mortgagee has 12 years from the accrual of the cause of action to sue for the principal of the debt, but six years to sue for interest.

8.) You may have a claim to reduce the debt that they are seeking judgement on but this claim would only be tied to the interest and not the principal amount.

 

I would be in negligence if I didn’t advise you to seek legal aid and get professional counsel as the points above are complicated matters of law. Not saying they are beyond you, what I am saying is that counsel would be able to deal with the matter more efficiently.

Edited April 4, 2010 by rhodium78
formatting went awry!

[inafix]

Thanks for your help.

I still don’t understand what you are disputing or if there is any dispute?

I am disputing the amount owing and how it was calculated.

You had an agreement to pay the shortfall

Should I have a written agreement?

and they demanded full payment. You refused but did you withhold payment then or carry on the payments as normal?

The Dca said they could no longer accept payments and would be sending file back to Halifax for court proceedings. As payments were direct to Dca, I stopped the standing order.

This is going to full trial with no application for summary judgement?

What does this mean exactly?

 

Can you help with the wording for my defence?

[rhodium78]

Summary Judgement in a nutshell is where an application is made to the judge, either via the claimaint or defendant or the court itself and is to find out whether in your case, you have a valid defence to the claim. It is not to try your defence but you have to show the judge that you do have a real defence based on case law and precedents and hence your defence is not just a defence concocted to slow the wheels of justice down.

 

Sure, not a problem, I didn't pay attention to the dates so not sure when it is supposed to be submitted. I see you have already had excellent help here from others so get all the defence ideas from the various posters and then make a draft defence and post it up.

 

Then everyone can critique it and offer constructive criticism on it.

 

Remember, upto the trial, you still have a chance to settle but you don't have to accept their offer.

 

Also, for brevity, list the documents you have so far received as result of your various requests including your mortgage papers, etc.

[ndcdavis]

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.

[inafix]

Hi all and thanks nick,

Just to clarify actual figures, completion statement shows:

Total advance : £38,xxx.xx

Interest from 10/90 to 12/95 : £18,xxx.xx

Costs,fees,insurance,maintenance,VAT,etc. £4,2xx.xx

 

Sale proceeds : £24,500.00

Payments received : £12,xxx.xx

 

Final Loss : £24,xxx.xx

[ndcdavis]

Hi all and thanks nick,

 

Just to clarify actual figures, completion statement shows:

Total advance : £38,xxx.xx

Interest from 10/90 to 12/95 : £18,xxx.xx

Costs,fees,insurance,maintenance,VAT,etc. £4,2xx.xx

 

Sale proceeds : £24,500.00

Payments received : £12,xxx.xx

 

Final Loss : £24,xxx.xx

 

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.

[inafix]

Should I add details of the last claim and the reasons for strike out and the documents I am still waiting for?

I am having great difficulty now sorting out whats relevant to the judge and the proceedings.

 

Defence has to be submitted tomorrow!

Edited April 5, 2010 by inafix
addition

[Guest MamaG1]

I think you also need to check out the reposession treads. it may be very useful info on it also.

 

It is not easy I know facing all this alone without help. U will beat them by God's grace.

[rhodium78]

Who is the claimant... third party DCA or the bank itself...?

[inafix]

I am now beginning to think there was never any judgment!!

I have just dug out paperwork from my current mortgage which was taken out 06/2000. I have a printout from the Registry of County Court Judgments dated 05/2000, which shows nothing. Also, the statement from the dca shows an opening balance of £24,xxx.xx (the final loss).

 

If there is no judgment, does this mean I have no defence??