Shortfall Court Summons - URGENT help needed please!

[inafix]

The claimant is Hbos, being pursued by 'their' solicitors.

[rhodium78]

No, it doesn't mean that... Looking at case law, you are liable for the principal but more than likely not for the interest.. have to go out so can't offer a detailed answer but see if you can find any papers for the original re-possession... court summons, etc.

[inafix]

I've never had any paperwork relating to this claim, not even anything from when I started paying the dca. Thats been the problem from the start, just trying to ascertain facts and figures!

[inafix]

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

I don't think it was 'SOLD' , as I believe, they are acting under the banks instruction

[rhodium78]

Ok.. so you have no paper work at all.. but you stated in post 97 that you have received:

 

"Completion Statement (showing final loss of £24,xxx.xx)

 

Mortgage Deed (signed and dated)

 

Offer of Mortgage (which includes special conditions:

: the society proposes to take additional security in the form of an insurance guarantee of £4250.)

- would this make a difference if they have claimed on this?

 

Notice of Appoinment with Bailiff

- they sent this instead of the Possession Order!"

 

You will need to first read the T&Cs in your mortgage to find out how they approportion payments.. whether it is to interest or to principal/capital. I will be surprised if it is not towards interest on the morgage.

 

You can pursue the angle of underselling the property but case law dictates that this is not a defence.

 

You are liable for the principal amount. The interest they are pursuing seems to be the statute induced interest, not interest accrued under the agreement. If you can confirm that point.

 

Your defence depends on the following:

 

What it says in the T&Cs.

What other paper work you have received from them.

 

You can't refute the fact that you have had an agreement with them but you can refute the fact that you owe them money.

 

We are going to try our luck here... this is a draft defence but should be used in conjunction with the defence from the other posters as I didn't want to repeat things here. Use the below in conjunction with the others and put it all into one big document... then chop and change according to taste...

 

1. It is denied that the Defendant is indebted to the Claimant because the Claimant has not provided any evidence that the Defendant is indeed indebted to them. The Defendant kindly requests the Court to put to strict proof that the Claimant has a legal basis to raise this claim. This should consist of but not be limited to, any possession orders, the sales agreement of the property that the Claimants took possession of and any extra fees or interest claimed in this case.

 

2. The proceeds of the sale of the property should have been apportioned to the capital and not the interest. The Defendant asks the Court to put the Claimant to strict proof that it should have gone to Interest first and then Capital.

 

3. It is denied that any payment made by the Defendant gives rise to Fresh Accrual of Action under the limitation act. Any payments made were deemed ex gratia and with full liability denied.

 

4. It was mentioned by the Claimants via their third party debt collection agency that a judgement was obtained. I could not locate any judgement and if there is indeed a judgement, then this is an abuse of process as the Defendant is being tried twice for the same debt. The Defendant asks the Court to put to strict proof that the Claimants do not have a judgement already against the Defendant.

[inafix]

Thanks for that Rh78, every bit of help and advice is much appreciated.

Ok.. so you have no paper work at all.. but you stated in post 97 that you have received

Sorry I meant I'd had nothing in the beginning, this is whats included in their bundle to the court.

[rhodium78]

To clarify point 3, you are claiming that due to harassment, you are making payments but that you stated to the DCA that they are ex gratia and that you don't owe any liability. You are on thin ice with this one though. Claims for payment do not count for harassment BUT you can state that the DCA were infringing your rights under s 40 of the Administration of Justice Act 1970 which provides protection for debtors.

 

Read the following sections and tell me if the DCA breached any...

 

40 Punishment for unlawful harassment of debtors

 

(1) A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he—

(a) harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation;

(b) falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;

© falsely represents himself to be authorised in some official capacity to claim or enforce payment; or

(d) utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.

 

 

 

(2) A person may be guilty of an offence by virtue of subsection (1)(a) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.

(3) Subsection (1)(a) above does not apply to anything done by a person which is reasonable (and otherwise permissible in law) for the purpose—

(a) of securing the discharge of an obligation due, or believed by him to be due, to himself or to persons for whom he acts, or protecting himself or them from future loss; or

(b) of the enforcement of any liability by legal process.

 

 

 

[(3A) Subsection (1) above does not apply to anything done by a person to another in circumstances where what is done is a commercial practice within the meaning of the Consumer Protection from Unfair Trading Regulations 2008 and the other is a consumer in relation to that practice.]

(4) A person guilty of an offence under this section shall be liable on summary conviction to a fine of not more than [level 5 on the standard scale].

 

Also, and this is really really pushing it, maybe protection under the Protection from Harassment Act 1997.... draft your defence and then all and sundry can amend it as we go along...

[inafix]

What it says in the T&Cs.

HMM, IT SAYS INTEREST FIRST THEN CAPITAL.

Not looking good, I don't think!

Further on it says:

'Where judgment is given for the payment to the society of any sum secured by the mortgage, then, notwithstanding the judgment, interest will continue to be charged on that sum at the rate applicable to it under these conditions.'

[rhodium78]

Ok... your case is getting difficult with every disclosure...

 

For the statute of limitations, use the above but don't hold your breath... you are stuck between a rock and a hard place...

 

Compile your defence and we will go through it...

[inafix]

Sorry, just had unexpected visitors!

Anyway,

 

1. The Defendant wishes to draw to the courts attention that the Claimant has previously filed proceedings against me in respect of exactly the same matter under Case No. .

The claim was struck out as the Claimant failed to file its allocation questionnaire and fee within the given time, then, on reinstatement, subsequently failed to provide a copy of the Possession Order, failed to pay court fees within the given time, and failed to pay my Solicitors costs within the given time.

 

2. It is respectfully requested that the court, again, orders the claimant to supply a copy of the Possession Order as detailed in these previous proceedings, also, documentary evidence of any Judgment obtained in relation to the alleged debt, the Mortgage Agreement of the property the Claimant took possession of, a copy of the Mortgage Indemnity with full details of claims made, and details of how interest was calculated from the start of the alleged arrears. The said documents were previously requested by the Defendant in writing, prior to court proceedings, in order for the Defendant to substantiate the alleged amount owing, before any agreement of settlement. This has been the aim of the Defendant since the outset.

 

3. The Defendant believes the claimant has acted unreasonably and vexatious in bringing this action whilst the debt is being disputed, where OFT guidelines state that no enforcement action should be taken whilst a debt is in dispute. (see enclosed letters to Claimant requesting further information and to previous agents).

 

4. Without disclosure of all documents and information requested it is proving difficult to compile a fully particularised defence in response to the claimants particulars of claim. Until then I respectfully request the court grants permission for me to amend my defence when the claimant discloses the documents.

 

5. It is denied that the Defendant is indebted to the Claimant as alleged or at all because the Claimant has not provided any evidence that the Defendant is indeed indebted to them. The Defendant kindly requests the Court to put to strict proof that the Claimant has a legal basis to raise this claim. This should consist of but not be limited to the aforementioned documents listed in point 2.

 

6. Further or in the alternative the Defendant avers that on 13th October 1994 the xx County Court granted the Claimant possession of the Defendant’s property at xx, 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.

 

 

 

 

7. 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 14 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 £41,000. It is understood from the Particulars of Claim that the net proceeds of sale were £24,500 and additional payments were received of £3638.98. Accordingly the capital outstanding under the 1994 Judgment cannot exceed £13,000.

e. The maximum interest that can be applied is 6 years at 8% totalling approx. £6,250.

f. Thus the claim can be for no more than £19,250.

 

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 £24,500.00 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. It is denied that the Defendant 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 made by the Defendant and made ex gratia with such effect. Such payments as were made (none being admitted) were payments made owing to the representations and/or the duress and/or the undue influence of the Claimant, its servant and/or agent and upon the Claimant and/or its servant or agent falsely representing their authority as bailiffs to enter the Defendants property and seize goods without court action and other infringements of the Defendants rights under s 40 of the Administration of Justice Act 1970.

 

9. In the circumstances the Claimant’s claim is denied.

[rhodium78]

 

1. The Defendant wishes to draw to the courts attention that the Claimant has previously filed proceedings against me in respect of exactly the same matter under Case No. .

The claim was struck out as the Claimant failed to file its allocation questionnaire and fee within the given time, then, on reinstatement, subsequently failed to provide a copy of the Possession Order, failed to pay court fees within the given time, and failed to pay my Solicitors costs within the given time. This has given rise to further costs being incurred by all parties and the wasting of the court's time. The Claimant is pursuing this action without adherance to pre-action protocols and without an adequate case.

 

2. It is respectfully requested that the court, again, orders the claimant to supply a copy of the Possession Order as detailed in these previous proceedings, also, documentary evidence of any Judgment obtained in relation to the alleged debt, the Mortgage Agreement of the property the Claimant took possession of, a copy of the Mortgage Indemnity with full details of claims made, and details of how interest was calculated from the start of the alleged arrears. The said documents were previously requested by the Defendant in writing, prior to court proceedings, in order for the Defendant to substantiate the alleged amount owing, before any agreement of settlement. This has been the aim of the Defendant since the outset.

 

3. The Defendant believes the claimant has acted unreasonably and vexatious in bringing this action whilst the debt is being disputed, where OFT guidelines state that no enforcement action should be taken whilst a debt is in dispute. (see enclosed letters to Claimant requesting further information and to previous agents).

 

4. Without disclosure of all documents and information requested it is proving difficult to compile a fully particularised defence in response to the claimants particulars of claim. Until then I respectfully request the court grants permission for me to amend my defence when the claimant discloses the documents.

 

5. It is denied that the Defendant is indebted to the Claimant as alleged or at all because the Claimant has not provided any evidence that the Defendant is indeed indebted to them. The Defendant kindly requests the Court to put to strict proof that the Claimant has a legal basis to raise this claim. This should consist of but not be limited to the aforementioned documents listed in point 2.

 

6. Further or in the alternative the Defendant avers that on 13th October 1994 the xx County Court granted the Claimant possession of the Defendant’s property at xx, 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.

 

 

7. 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 14 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 £41,000. It is understood from the Particulars of Claim that the net proceeds of sale were £24,500 and additional payments were received of £3638.98. Accordingly the capital outstanding under the 1994 Judgment cannot exceed £13,000.

e. The maximum interest that can be applied is 6 years at 8% totalling approx. £6,250.

f. Thus the claim can be for no more than £19,250.

 

6. The Defendant avers that in the court's 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 £24,500.00 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. It is denied that the Defendant 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, if there were one or more payments, that such there was a payment or payments made by the Defendant were and made ex gratia and were intended with such effect. Such payments as were made (none being admitted) were payments made owing to the representations and/or the duress and/or the undue influence of the Claimant, its servant and/or agent and upon the Claimant and/or its servant or agent falsely representing their authority as bailiffs to enter the Defendants property and seize goods without court action and other infringements of the Defendants rights under s 40 of the Administration of Justice Act 1970.

 

9. In the circumstances the Claimant’s claim is denied.

 

Some details I believe need amending... Red - deletion, green - addition

 

Ensure that you are not missing any defence from the other posters.... and good luck

[caro]

Have you established whether or not there was a judgement?

[rhodium78]

I was under the impression that there wasn't one which is why in point 4 above in my defence draft (which was omitted in the OP's defence), I put the claimants to strict proof there isn't one as he can't be tried twice for the same debt, only enforcement. That is the million pound question...

[ndcdavis]

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.

[caro]

I was under the impression that there wasn't one which is why in point 4 above in my defence draft (which was omitted in the OP's defence), I put the claimants to strict proof there isn't one as he can't be tried twice for the same debt, only enforcement. That is the million pound question...

 

Ok, although the numbering needs looking as after paras 1 - 7, it starts at 4 again.

[rhodium78]

oops... was looking at the content and not the numbering... good catch...

[inafix]

Have you established whether or not there was a judgement?

I was under the impression that there wasn't one which is why in point 4 above in my defence draft (which was omitted in the OP's defence), Sorry forgot to put this bit in.

Ok, although the numbering needs looking as after paras 1 - 7, it starts at 4 again

yes, i noticed that afterwards!

The purpose of the defence is to summarise the issues

Any bit that you think are more important than others?

This is what I was having difficulty with.

[rhodium78]

The problem with summarising or leaving stuff out is that in my experience, the court frowns against new arguments brought up... your case is not straightforward for example you owe them money. It has complications...

 

Have a look at ndcdavis' thread... it has interesting reading on a case similar to yours...

 

Quick question... did you get the judgement or not back then? What was the order?

 

I don't see them anywhere charging you interest except statutory interest.... I apologise if I missed a few posts illustrating that but there is a lot to read and we need to the get the facts summarised...

[inafix]

Quick question... did you get the judgement or not back then? What was the order

Not that I'm aware of.

[rhodium78]

Ok... you will need to put point 4 in there as we need to ask the Claimants to prove that they did not get a judgement/money order/pound of flesh because if they did... it goes against natural law.

[caro]

This really goes to show that inafix cannot properly defend this case without documentary evidence that the money is owed to the claimant, and if so, exactly how much and how the figure has been calculated.

[rhodium78]

Yep but unfortunately he is in a catch 22 situation as he has documentation.. albeit sub-standard... his case is riddled with a lot more questions than answers so we should be building not only a defence that is embarrassing but also refutes any allegations for which he has documentation on. We do have some documentation:

 

Completion Statement (showing final loss of £24,xxx.xx)

 

Mortgage Deed (signed and dated)

 

Offer of Mortgage (which includes special conditions:

: the society proposes to take additional security in the form of an insurance guarantee of £4250.)

 

Notice of Appoinment with Bailiff

- they sent this instead of the Possession Order!"

 

In court, the basis of the calculations will be ironed out. Would have been better to have it before but it seems that the other side are not willing to play ball hence the long winded defence.

[inafix]

So should I leave everything in ?

Do we need the part about the interest?

[rhodium78]

I would but it's up to you... I can't comment on the justification given for the other points in the defence as I was not party to them.

 

Re-post your defence when you are done so the final version can be ratified....

[inafix]

1. The Defendant wishes to draw to the courts attention that the Claimant has previously filed proceedings against me in respect of exactly the same matter under Case No.

The claim was struck out as the Claimant failed to file its allocation questionnaire and fee within the given time, then, on reinstatement, subsequently failed to provide a copy of the Possession Order, failed to pay court fees within the given time, and failed to pay my Solicitors costs within the given time. This has given rise to further costs being incurred by all parties and the wasting of the court's time. The Claimant is pursuing this action without adherance to pre-action protocols and without an adequate case.

2. It is respectfully requested that the court, again, orders the claimant to supply a copy of the Possession Order as detailed in these previous proceedings, also, documentary evidence of any Judgment obtained in relation to the alleged debt, the Mortgage Agreement of the property the Claimant took possession of, a copy of the Mortgage Indemnity with full details of claims made, and details of how interest was calculated from the start of the alleged arrears. The said documents were previously requested by the Defendant in writing, prior to court proceedings, in order for the Defendant to substantiate the alleged amount owing.

3. The Defendant believes the claimant has acted unreasonably and vexatious in bringing this action whilst the debt is being disputed, where OFT guidelines state that no enforcement action should be taken whilst a debt is in dispute. (see enclosed letters to Claimant requesting further information and to previous agents).

4. Without disclosure of all documents and information requested it is proving difficult to compile a fully particularised defence in response to the claimants particulars of claim. Until then I respectfully request the court grants permission for me to amend my defence when the claimant discloses the documents.

5. It is denied that the Defendant is indebted to the Claimant as alleged or at all because the Claimant has not provided any evidence that the Defendant is indeed indebted to them. The Defendant kindly requests the Court to put to strict proof that the Claimant has a legal basis to raise this claim. This should consist of but not be limited to the aforementioned documents listed in point 2.

 

6. Further or in the alternative the Defendant avers that on 13th October 1994 the xx County Court granted the Claimant possession of the Defendant’s property at xx, 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.

 

 

7. It was mentioned by the Claimants via their third party debt collection agency that a judgement was obtained. I could not locate any judgement and if there is indeed a judgement, then this it is averred that these proceedings are an abuse of process as the Defendant is being tried twice for the same debt in respect of which the Claimant already holds a Judgment. The Defendant asks the Court to put to strict proof that the Claimants do not have a judgement already against the Defendant.

8. 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 14 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.

 

9. 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 £41,000. It is understood from the Particulars of Claim that the net proceeds of sale were £24,500 and additional payments were received of £3638.98. Accordingly the capital outstanding under the 1994 Judgment cannot exceed £13,000.

e. The maximum interest that can be applied is 6 years at 8% totalling approx. £6,500.

f. Thus the claim can be for no more than £19,500

10. The Defendant avers that in the Courts 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.

 

11. 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 £24,500.00 represented the best price reasonably available on the sale of the property. A reasonable price would have been not less than £35,000.00.

 

12. It is denied that the Defendant 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, if there were one or more payments, that such a payment or payments made by the Defendant were made ex gratia and with full liability denied. Such payments as were made (none being admitted) were payments made owing to the representations and/or the duress and/or the undue influence of the Claimant, its servant and/or agent and upon the Claimant and/or its servant or agent falsely representing their authority as bailiffs to enter the Defendants property and seize goods without court action and other infringements of the Defendants rights under s 40 of the Administration of Justice Act 1970.

13. In the circumstances the Claimant’s claim is denied