Shortfall Court Summons - URGENT help needed please!

[citizenB]

You must bring this late submission of WS to the Judges attention.. as soon as you can.

 

Do check with the court before leaving that they have received a copy of this as well.

 

Take the envelope and any covering letter to the court with you.

 

IMHO, despite their grovelling, this just shows further contempt for court procedure.

 

Good luck, fingers crossed.

[citizenB]

IAF, none of the CAGers who have been helping you are online at the moment.

 

You have a strong case, stick with the original plan.

 

They have to PROVE they have a good case.. I think you have enough to say that they havent.

[inafix]

OK, thanks.

Court only received theirs this morning. Clerk says to mention this to the judge.

Watch this space.........

[citizenB]

Watching.....

[inafix]

BAD NEWS

Judge ruled in favour of the claimant.

It is NOT an abuse of process because the case has not been heard!

I have 28 days to file my defence.

[citizenB]

BAD NEWS

Judge ruled in favour of the claimant.

It is NOT an abuse of process because the case has not been heard!

I have 28 days to file my defence.

 

This is the 2nd time today a Judge has got out of bed the wrong side

 

Ok, then we need to go through all your paperwork and posts and put together a slamdunk defence. I will have a look back over your thread tomorrow and try and round up some help for you.

 

I am really sorry to hear this. I cant believe the Judge let them get away with filing that statement just hours before the hearing:mad:

[inafix]

Feeling totally deflated just now, mate.

Sorry guys, I messed up!

I felt completely overwhelmed in there.

IMHO, I believe the judge had made up his mind before I even sat down.

He even mentioned that they'd had a virtually identical case earlier in the day, with the same appointed solicitor, representing GMAC.

The judge wasn't interested all in the facts of the last strike out, but said because of the amounts involved in should go to trial.

The sol. had his big white CPR book and was shoving it in front of me as he read passages from it.

I felt totally intimidated by both him and the judge.

I said I was doing everything by the book and on time, but a large firm dealing with these issues every day can please themselves. Its like one rule for me and a different rule for them.

[slick132]

Hi IAF,

 

This didn't go your way but Strike Out Applications are often turned down.

 

The experience has left you feeling down, but you have leared a lot from it. Next time you're in court, you'll be so much better prepared in many ways.

 

Use the time now to read up on your case, case law and use other success threads as examples to read and learn from.

 

Onwards and upwards.

[inafix]

Are you still helping me guys??? Much appreciated.

[inafix]

I need to file a fully pleaded defence by 6th April.

Thanks slick and cb.

Are Nick and x20 still on the case too as their original defence drafts were of great help ?

[citizenB]

X20 is no longer here.

 

Will have a look back over your thread and see what can be done.

 

Have you started to put anything together ?

[citizenB]

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!

 

 

Have they paid the costs ordered in the original claim ?

 

I think you will need to private message ncdavis (nick) as I see he was helping before.

[inafix]

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?

[inafix]

Sorry guys, but I haven't got a clue where to start!

[Guest MamaG1]

So what happened here then?.

 

It will be good to know the final outcome of the case.

[inafix]

Thanks for your concern MamaG.

All my advice seems to have dried up!

 

Is there ANYONE out there who can help me?

Could someone forward this thread to Ell-enn??

 

It's nearly easter weekend and my defence needs to be in by next Tuesday!

[citizenB]

Have flagged your post for attention of site team.

 

Have you done ANYTHING towards putting a defence together ?

 

Can you pop a summary of things to date in order to assist others looking in.

[inafix]

Thankyou so much CB.

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

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.

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..................

[citizenB]

Particulars of claim

 

1. By way of a legal mortgage dated xx xxx 1990, xxx and xxx charged the property kwown as and situated at xx xx to the claimant.

 

2. The claimant obtained possession of the property on xx Oct 1994.

 

3. On xx Dec 1995 the claimant sold the property in exercise of its power of sale as mortgagee in possession for the sum of £24,xxx.xx.

 

4. At the date of sale, the amount outstanding under the martgage was £48,xxx.xx.

 

5. The claimant apportiond the sale proceeds of £24,xxx.xx 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 £24,xxx.xx. The aforementioned figure represented capital debt.

 

6. The claimant claims interest pusuant to section 69 of the County Courts Act (1984) at the rate of 8% per annum for the period of xx December 1995 and xx September 2008 in he sum of £24,xxx.xx.

 

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 £5.30 to the date of judgement or payment if sooner.

 

8. The claimant has received payments to the mortgage account to the value of £3,xxx.xx. between the date of sale and date of intended issue of this claim. On this point the defendant is specifically

referred to the provision of ss29 and 31 of limitation act 1980 which provide for Fresh Accrual of Action on receipt of a payment made by the mortgagor or a joint-mortgagor.

 

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

 

10. ***Blah about Halifax being taken over by BOS. ****

 

AND THE CLAIMANT CLAIMS:

 

1. the sum of £45,xxx.xx pursuant to details in paragraph 5, 6 and 8 above;

 

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

 

3. costs.

 

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

 

 

 

 

 

 

You may want to pass this decision to your solicitor...

 

http://anlaw.co.uk/downloads/files/Allaince%20and%20Leicester%20v%20Reynolds.pdf

 

regards

Nick.

 

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

.

 

(7) The Claimant has failed to comply with that order and thus the action remains struck out.

 

(8) These proceedings are abusive. The claimant should not commence new proceedings. If it wishes to proceed, it should make an application to re-instate the struck-out proceedings and should provide an explanation the Court for its contumelious conduct.

 

(9) I also ask the Court to consider whether to make a civil restraint order under CPR3.4(6).

 

hope this helps

Nick.

 

URGENT...I'M LEAVING FOR COURT IN LESS 2 HOURS

HELP PLEASE ANYONE?

 

Have just now received a copy of witness statement from sols.

4 pages of jargon, but main points for their defence......

...the issues in the current proceedings have not been judicially determined as the substantive issues have not been heard by the court. The original proceedings wre struck out due to the procedural failings of instructing solicitor and therefore it cannot be said that the claimant is mis-using the court process by attempting to re-litigate that which has already been determined. To strike out the claim would deny the claimant its right to a fair trial of the issues which are the subject of the claim.

 

The instucting solicitors accept that they were at fault in the original proceedings and the claimant has a;ready been punished in the form of paying the defendants costs. To strike out the current proceedings would be to further punish the claimant for the actions of the instructing solicitors and as the issues in the claim have not been properly tried in any event, and the strike out of the current proceedings would entirely deny the claimant of its opportunity for the first time that which has not been determined by the court, namely issues which are properly the subject litigation against the defendant.

 

Instructing solicitor respectfully submits that the claimants claim has a real prospect of success at trial, and denies that they were in breach of care upon the sale of property.

 

There are no concerns in terms of litigation in either the original or the current proceedings. The defendants payments made following the sale of the property served to restart the limitation clock by virtue of section 29 limitation act 1980.

 

The sustantive issues in this matter have not been fully heard by the court, the defendant has suffered no abuse in the current proceedings being pursued, the current proceedings cannot be deemed an abuse of process. Instructing solicitors are extremely apologetic for the mistakes in the original proceedings, however respectfully submit that it would be grossly unjust to stike out the claimants claim for its actions in the original proceedings. It was not the intention to disrespect the court.

 

The defendant has not been vexed twice in the same matter as the claim was never judicially determined. Accordingly, having regard to the overriding objective to deal with cases fairly, the claimant humbly requests that the court dismisses the defendants application to strike out the claim.

 

What should my response be to the judge??

 

Right, I have just brought forward some information that might be of use to others looking in.

 

Can you type up the latest particulars of claim.

 

The defence you submitted originally, was it exactly as X20 provided or were there additions/amendments

 

You have still not received a copy of the original possession order, have you ?

 

Nick provided a judgement that he thought would be useful. Is there anything in there that would help you..I brought it forward and it is the 3rd quote above.

 

I have also sent an S.O.S to nick.

Edited March 30, 2010 by citizenB

[ndcdavis]

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

[inafix]

Thanks CB.

 

Can you type up the latest particulars of claim

.

Particulars of claim are the same except they are claiming interest

up to Oct 2009 , daily rate £4.51.

 

The defence you submitted originally, was it exactly as X20 provided or were there additions/amendments

Added:

The defendant wishes to drwa to the courts attention that the Claimant has failed to provide the relevant documents and information relating to this claim as required by the Civil Procedure Rules, and as requested in writing, prior to court proceedings, inorder for the defendant to substantiate the alleged amount owing, before any agreement of settlement. 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 agent).

Withot disclosure of all documents and information requested it is proving difficult to compile a fully particularised dfence in response to the claimants particulars of claim.

Should it not be considered acceptable to strike out the claimants claim, it is respectfully requested that the court orders the claimant supply the requested information as detailed in the enclosed copy of the letter to HL Solicitors, and until then I respectfully request the court grants permission for me to amend my defence when the claimant discloses the documents.

 

You have still not received a copy of the original possession order, have you ?

NO!

 

Nick provided a judgement that he thought would be useful. Is there anything in there that would help you..I brought it forward and it is the 3rd quote above.

I did forward this to my solicitor at the time, but they thought that because no possession order has been forthcoming and it is therefore unknown if there was a money judgment it would be difficult to follow the same tack.

 

I still think that if a money judgment was made at the time of the possession order this is important

Could we say there WAS and get them to prove ther WASN'T?

I have no idea why I would start making payments to the first DCA if there is no paperwork to back up their claim?

 

I telephoned the court who said they only keep records back 3/5 years!!

[inafix]

Documents forwarded to me so far:

 

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!

[Guest MamaG1]

HI Inafix,

 

I wish I could help advise, you , but I am learning myself and depending on the advise of the site members etc.

 

Help please someone out there.

 

I am in a close situation myself, and Ia m hoping help will come from the fellow CAGRS. when needed.

 

Good luck and hope you defeat the thieving roags. !!!

 

MamaG1

[citizenB]

Documents forwarded to me so far:

 

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!

 

Did you pay for this insurance ?

 

I see nick has responded to the SOS:D, thank you. Hopefully, he will be able to come up with something.

[inafix]

Did you pay for this insurance ?

 

 

Yes..£163.65