Shortfall Court Summons - URGENT help needed please!

[slick132]

Hi IAF,

 

I have flagged this up to see if any other input can be made.

 

The Directions set out in post #180 above are the timetable of events which will lead up to a hearing, if the matter is not resolved between the 2 parties.

 

Don't know if this has been mentioned before - was there a Mortgage Indemnity Policy which you would have paid for at the start of the mortgage. Although you have to pay the policy premium, the lender benefits if the property is repossessed and sold at a loss.

 

If this was in place, the lender would have been paid out by the insurance and reclaiming from you now would be unjust enrichment on the lender's part.

 

[caro]

 

If this was in place, the lender would have been paid out by the insurance and reclaiming from you now would be unjust enrichment on the lender's part.

 

 

Unfortunately I don't think it's quite that straight forward. As I understand it, if the insurance company pays out, the insured still has an obligation under the terms of the insurance to seek repayment and reimburse the insurance company. It doesn't negate the borrowers liability.

 

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

[caro]

HL Interactive Solicitors.

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

...continual unmissed payments....

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 Interactive 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..................

 

Was there any explanation as to why the explanation was denied?

 

Have just received from the court Notice of Allocation to the Multi-track.

Each party to give standard disclosure by July 2nd.

 

CPR31.6 covers standard disclosure. You each have to provide a list of all the documents you are going to rely on in your case. They have to disclose everything, even if it is likely to work against them. You have to do the same. PART 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS - Ministry of Justice

 

Any requests fo inspection or copies to be made by Jul 9th.

 

When you have had each others lists on 2nd July you have a week to let each other know which documents you want.

Statements of witnesses of fact are to be exchanged simultaneously by Aug xx.

 

At this stage you should have all the documents the other side are relying on, and be able to refer to them in your statement. You have to write down exactly what has happened to date. By exchanging statements simultaneously it means that no-one has the benefit of seeing the others statement before writing their own, so no-one can gain any advantage.

The parties shall consider by xx Oct whether the case is capable of resolution by ADR. If any party considers that the case is unsuitable for resolution by ADR, that party shall be prepared to justify that decision at the conclusion of the trial.

 

This is the courts way of trying to get both sides to resolve the issues without going to court. By doing this you may well be able to avoid costs. If you don't want to go down this route you will need to have good reason or you may appear unreasonable. If the claimant doesn't want to do this either the court is not likely to be happy with them.

 

I have no idea what any of this means.

HELP Please!

 

In all honesty I don't think that this is a bad order. You haven't been given documents previously, and it's always good to have standard disclosure as they have no choice but to reveal all they've done - good and bad.

 

There are also a lot of deadlines here. It is absolutely vital that you meet all of them and do exactly as the court instruct. Now whether the other side will manage to do the same is another matter.

 

If the alternative dispute resolution goes ahead and doesn't work then the case will go to court.

 

Just take things one step at a time, and use your time wisely so you aren't panicing at the last minute. If you have questions ask them here in good time and we'll all try and help you.

 

First step is your disclosure list, so get all your paperwork together in date order, and think about if there is anything else that you will need if and when you get to court.

[inafix]

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..................Was there any explanation as to why the explanation was denied?

Judge agreed with their sol. that it was not an abuse of process as the case has not yet been heard.

In all honesty I don't think that this is a bad order. You haven't been given documents previously, and it's always good to have standard disclosure as they have no choice but to reveal all they've done - good and bad

Does this mean they MUST produce a copy of the possession order before continuing?

There are also a lot of deadlines here. It is absolutely vital that you meet all of them and do exactly as the court instruct. Now whether the other side will manage to do the same is another matter

All deadlines were drawn up by the claimants sol. and submitted with their AQ.

If the alternative dispute resolution goes ahead and doesn't work then the case will go to court

.

This is definately the way forward for me. How does this work exactly?

Edited June 7, 2010 by inafix

[inafix]

bump

[citizenB]

Does this mean they MUST produce a copy of the possession order before continuing?

 

Have they been ordered to produce it by the court, are they relying on it in their defence/witness statement. Have they mentioned it in their disclosure ?

 

If the alternative dispute resolution goes ahead and doesn't work then the case will go to court

 

This is definately the way forward for me. How does this work exactly?

 

I dont know how you would signal that you would be willing to use the ADR. Were you given any notes that explains things ?

 

I will ask for you.

[inafix]

Does this mean they MUST produce a copy of the possession order before continuing?

Have they been ordered to produce it by the court, are they relying on it in their defence/witness statement. Have they mentioned it in their disclosure ?

They were ordered to produce it in previous proceedings, but NOT this time, even though I asked for it in my defence statement and my AQ. They say it is not retained on file?

How can the exact same proceedings be struck out for non-disclosure of the Possession Order, yet new proceedings can be allowed to go ahead?

I feel the judge hasn't taken any of this into consideration and it's all a bit one-sided

 

I dont know how you would signal that you would be willing to use the ADR. Were you given any notes that explains things? NO!

[citizenB]

I did flag your questions for the site team. I will just go and see if there are any answers. BRB

[citizenB]

Inafix, the post below was offered by steven4064

 

inafix signals his/her agreement to ADR in section A of the AQ

 

HTH

[inafix]

Inafix, the post below was offered by steven4064

 

 

Quote:

inafix signals his/her agreement to ADR in section A of the AQ

We had put 'NO' on the AQ ...reason being I was still awaiting a copy of the Possession Order before we could proceed any further.

[inafix]

Would it be wise to send a letter to the judge at this stage, again reiterating the importance of the Possession Order, with a mind to save costs, time, etc...........

I still feel this has been overlooked having been struck out in previous proceedings.

[caro]

Would it be wise to send a letter to the judge at this stage, again reiterating the importance of the Possession Order, with a mind to save costs, time, etc...........

I still feel this has been overlooked having been struck out in previous proceedings.

 

The judge has asked for standard disclosure. They will need to produce everything, so I think that's covered. Letters to the court often don't seem to carry much weight so unless you want to put in a formal application and pay the appropriate fee I suspect it won't make a difference.

 

Just because you said no to ADR doesn't mean that the judge has to go along with your wishes.

[inafix]

Each party to give standard disclosure by July 2nd.

 

 

Standard disclosure requires a party to disclose only –

 

(a) the documents on which he relies; and

 

 

(b) the documents which –

(i) adversely affect his own case;

 

(ii) adversely affect another party’s case; or

 

(iii) support another party’s case; and

 

 

 

© the documents which he is required to disclose by a relevant practice direction

 

.

 

What documents do I need to send? Do I send them to the court or direct to the claimants solicitor?

 

If the Possession Order is not present, what then?

Edited June 16, 2010 by inafix
add text

[inafix]

Any advice anyone, PLEASE!

[iconoclash]

PART 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS - Ministry of Justice

 

this is the bit you need - hope it helps as it is ensures that they have to disclose more than anything else

[inafix]

Thanks, I've read thru that, but I'm still unsure which are the important bits that I need to send????

[caro]

You have to disclose ALL documents that you have which are to do with the case. You need to make a list of them all so that the other side can look and decide which ones they want to see. You MUST disclose everything, even if there are things that you'd rather not.

 

If you aren't clear about where the list needs to be sent give the court a ring to check.

[inafix]

I received their court bundle of docs. early March, so I'm assuming they will have exactly the same list as me. There is a letter to the court saying they do not have a copy of the possession order on file.

I am becoming very worried that the judge will allow the case to continue without them having it.

[iconoclash]

Hi - sorry I havent followed your thread closely but one thought - this posession order : if this is needed by you I'd have thought the court should have a copy (since they issued it).....

[inafix]

posession order : if this is needed by you I'd have thought the court should have a copy (since they issued it).this ...

they don't keep ANY documents more than 5 years!

If the Possession Order is not present, what then?

Can anyone tell me what the best and worst case scenarios are for me as to the outcome of tis case?

[inafix]

Each party to give standard disclosure by July 2nd.

Have not received their list, but sent mine recorded delivery.

What now?

[caro]

Contact the court on Monday and ask them to let the judge know that you haven't had their list so you cannot comply with the second part of the order on time, if at all.

 

It would be nice to think that he will strike out the case but there are no guarantees, and you may be better advised to submit an N244 application to have it struck out.

 

See what the court say on Monday.

[inafix]

Received their list today plus copies of everything (281 pages).

There is a court doc. Notice of Issue of Fixed Date Summons or Originating Application dated Dec. 93 for hearing in Feb. 94. Is this linked to the possession order?

There are loads of docs that I have never seen before, but it looks like they have a strong case.

I am starting to get really worried now.

[caro]

Received their list today plus copies of everything (281 pages).

 

There's bound to be a lot going back over such a long time.

 

There is a court doc. Notice of Issue of Fixed Date Summons or Originating Application dated Dec. 93 for hearing in Feb. 94. Is this linked to the possession order?

 

Seems likely.

 

There are loads of docs that I have never seen before, but it looks like they have a strong case.

 

Don't forget they've had to disclose documents that go against them as well.

 

I am starting to get really worried now.

 

Don't panic. You've got a lot to do, but preparation is the key.

 

You have a lot of reading to do so use your time wisely. Just take it one document at a time.

[inafix]

There is a court doc. Notice of Issue of Fixed Date Summons or Originating Application dated Dec. 93 for hearing in Feb. 94. Is this linked to the possession order?

 

Seems likely

If they have this and the notice form the bailiff enforcing the repossession, WHY have they not got a copy of the Possession order.

Do you think it could have been purposely 'mislaid' ????