marg41 - mortgage shortfall

[42man]

Marg - have a look at these - the first one is probably the best....

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/162456-help-statute-barred-debt.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/163506-county-court-claim-received.html

[marg41]

I have read through the thread and I wondered would it apply to mortgage shortfall. Would the Combined CPR 31.12 and CPR 16.4(2) Request

have to be changed and does the same statute of law for six years apply to the twelve years as with mortgage shortfalls. I don't want them to claim a technical win because the wrong words were used in ignorance. SurfaceagentX20 has written a letter, could I use this as it is.

Apologies for my late night post last night but I was so depressed and felt I could not cope, husband is useless at this kind of thing. Sequenci, hope your wife gets better soon and you don't catch the dreaded virus. Who would I address this to the court or Drydens and Mortgage Services no2

Thank you

regards Marg

Edited July 9, 2009 by marg41
Add on

[marg41]

The letter you referred to is not for mortgages. I asked could it be adapted, no answer.

[sequenci]

The letter you referred to is not for mortgages. I asked could it be adapted, no answer.

 

It can be adapted.

 

s20 covers mortgage shortfalls, the limitation period is 12 years. You need to defend on these grounds. I would suggest a request under CPR 31.16 to get info regarding this from the mortgage company.

 

As time is of the essence you may wis hto see if you can seek some free assistance from your local law centre:

 

The Law Centres Federation

[marg41]

Thank. I know you are right.

I have been in touch with Community Legal Services and they have advised me to go to CAB. It looks as though I may be eligible for legal aid. The worst thing about all this is I found out yesterday that the court have not received my Acknowledgement of Service sent by normal post, stupid. Have now resent by fax and special delivery. I have prepared a defence with the help of a Housing Trust and once the CAB oks it on Monday I will send it off, Special Delivery, costs a fortune but at least you know it's going in the right direction. If I get confirmation that the SOA has been received I may adapt the latter and send ot off. At this stage I have nothing to lose at all. If and when there is an outcome I will come back and let you know what happened for others who are in the same boat. The one thing I should have done right at the start was to get proper legal advce I was told but thought, no I can do it myself now I have learnt that this is not possible. Thanks Marg

[marg41]

Is this adaptation ok to send off please advise.

 

Dear Sir, The Claimant's claim was issued on (date).

 

2 The Claimant defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980,' the claimant should already be aware more than 12 years have elapsed between cause of action accrued and the court claim by their court submission.'

3 The Claimant's claim to be entitled to payment of £37000 or any other sum, or relief of any kind is denied.

 

I am absolutely certain THAT THE CONTENTS OF THIS DEFENCE ARE TRUE.

 

 

 

Re: () v () Case No:

 

Request under CPR 31.16

 

On 30th June 2009 I received the Claim Form in this case issued by you out of the (Northampton) County Court. I confirm having returned my Acknowledgement of Service form to the court indicating my intention to contest all of the proceedings.

 

Owing to the striking lack of particularity in your Particulars of Claim, I require the prompt disclosure by you pursuant to CPR31.16 of each of the following documents, mention or reference to which would have been made had the Particulars of Claim contained the minimum of necessary particulars and complied generally with CPR PD 16.

 

1 the agreement giving rise to the obligation to Mortgage Services no.2 for the mortgage advanced. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the deed or other instrument of assignment by which you / the Claimant acquired rights under the agreement disclosed by you under [1] above.

 

3 the default notice, the service of which was a condition precedent to the creation of the debt now sued upon by you pursuant to the assignment disclosed by you under [2] above.

 

Additionally and in relation to the interest claimed, pursuant to CPR 16.4(2)

 

4 Under CPR 16.4(2)(a)(i) please now state whether the claim to £xxx.xx includes a claim for interest under the agreement disclosed under [1] above and if so,

 

5 Under CPR 16.4(2)(b) specify the amount of that interest, and

 

6 the percentage rate of interest, the date from which it is calculated and the date to which it is calculated, alternatively

 

7 Where more than one percentage rate of interest has been applied or compound interest has been applied in the calculation of the amount of interest specified at [5], specify each element of interest comprising the sum for interest specified at [5] and for each such element specify the amount treated as principal in the interest calculation, the percentage rate of interest, the date from which it is calculated and the date to which it is calculated.

 

8 Of the interest amounting to £xxx.xx claimed pursuant to County Courts Act 1984 section 69, specify the date from which it is calculated and the date to which it is calculated.

 

At this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise.

 

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

 

You should also ensure compliance with your CPR 16 duties and likewise ensure that the particular regarding interest are fully provided to and received by me within 7 days of receiving this letter.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request.

 

If you are unable to comply with that part of this request concerned with CPR 31 and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with any part of this request or fail to request more time, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance. .

 

I look forward to hearing from you.

Is it ok are there any glaring errors

Marg

Edited July 12, 2009 by marg41
Add on

[ndcdavis]

Marg,

 

I couldnt find the start of the thread.

 

Can you recall the circumstances of the repo? Do you still have a copy of the court order?

 

If there has been no part payment or acknowledgement of a debt for over 12 years, then the claim may be statute barred, unless at the same time as a repossession order, the court also made a 'money judgment'.

 

If the court did make a money judgment, then in my view, the new court case is an abuse of process. I have successfully argued this on several occasions. see for example http://www.anlaw.co.uk/downloads/files/Allaince%20and%20Leicester%20v%20Reynolds.pdf

 

It would be useful to see the text of the claim form and particulars of claim - can you load these?

 

Nick.

[marg41]

Page one was the start of the thread as I tagged on to someone elses instead of starting my own. I have an appointment with the CAB on Tuesday and ny response has to be by the 1st August. Lots of time was lost waiting for answers. They will advise me as to any defence that i might have or not as the case maybe. To be honest they are debt advisors and I think that are probably not qualified to deal with this but its better than nothing. I will upload the claim and defence papers that I have done, if I can. We left the house in 1997 handed keys back, no repossesion order was made. The last payment on the property was 1996. As we have other debts and had a debt management CCCS plan for the last three years they told us to admit and go for bankruptcy.

Thanks for your interest.

Marg

[marg41]

Had to admit, so waiting for the sword of Damocles to fall. How long does it take for them to ask for judgement. Thought they would have done it yesterday as the date for response was Monday.

Marg

[patrickq1]

hi madge how far along have you got with this ive not been on for a few weeks ...and wont be back after tommorrow for three weeks due to more operations ....so how far have got and what letters have been sent

[marg41]

Advice from the CAB was to defend the the higher ups got involved and said no admit beacuse it was our debt and they had asked for ex and inc so many times a judge would ask is this your debt and it is so we are going to go bankrupt. Strange thing is I would have expected them to ask for judgement on Monday but up to now they haven't. CAB offered them the bankruptcy fees in full but by instalments for a final settlement but no answer mind you I am getting used to that.

Sorry about your ops hope it goes well.

I will post result when I know

[marg41]

Here we are and still no action. Very strange they ask for judgement we admit and still no action in court or by notification.

[marg41]

Recieved a General Directions Order separating the claim in to two at least that is what it looks like. What purpose would that serve ?

[patrickq1]

i think your problem mad is you have admited this debt but on advice of cab you go for the b'ruptcy i would go for it but again i do not know your situation operations failed i am back in on 6 october for another one ...never mind ime still alive lol ...at least with the bankruptcy you will be clear in two years and wont have to worry anymore about debt collectors etc calling you day an night making threats

patrickq1

[citizenB]

marg, I will bring this to the attention of the site team for you. See if they have any ideas.

[steven4064]

Can you post the exact wording of the order, please

[marg41]

Sorry .

Did not realise anyone had replied. All has been revealed now. The order was to split the claim in two which should have been done in the first place, as was mentioned in an earlier post. Received fresh claim papers on Friday 28th September for the two of us. I rang the court and they said the whole thing had to be redone as the original claim was invalid and the firm has had to pay to get it redone. So depressing to have to do it all again after sitting here waiting for something more to happen since 1st August; I was beginning to hope it was processing our offer. I suppose that the fact that they have reissued it means that they are going to ask for judgement now and will be refusing the offer of the bankruptcy fees I am feeling very depressed because I was quite blase about it but now I am panicking as I have so many questions to ask about bankruptcy and can't get answers. My CAB advisor is off sick and every thing is a mess.

Edited September 28, 2009 by marg41
add

[sequenci]

I am panicking as I have so many questions to ask about bankruptcy and can't get answers. My CAB advisor is off sick and every thing is a mess.

 

What questions do you have?

 

YOu can either ask on here or call National Debtline on 0808 808 4000.

[marg41]

In this thread or start a new one.

[sequenci]

In this thread or start a new one.

 

This one would be ok

[marg41]

Thank you.

First of all

Bank accounts. According to the insolvency site they do not close your bank accounts the banks do. Is this right? We opened a basic co-op account when this thing first came up and we told them bankruptcy was in the offing and they said it's ok. I have a bank account for my benefits and my husband has a joint account which his wages go into and I do not use. If we transferred everything over to the co op there would be nothing in the accounts to freeze as we do not have overdrafts. Would this be ok as we would notify the Insolvency people of the three bank accounts is this ok.

At what stage do we need to start transffering DDs and incoming like disability benefits and wages, should we be doing it now.

When you print the forms off and take them to the court is that when the money is payable?

When do you apply to have court fees waved in my case because I only have DLA & SDA.

Do I need to inform or include utilities as we are not in arrears with them and they would not be creditors?

As we are both declaring BR should we do it separately or at the same time. We thought we could pay for one and then pay for the second one rather than pay the lot as we obvously have no money to do it all at once?

Sorry it's a lot of ?

Thanks

[sequenci]

Thank you.

First of all

Bank accounts. According to the insolvency site they do not close your bank accounts the banks do. Is this right?

yes, it would be the banks' decision.

We opened a basic co-op account when this thing first came up and we told them bankruptcy was in the offing and they said it's ok. I have a bank account for my benefits and my husband has a joint account which his wages go into and I do not use. If we transferred everything over to the co op there would be nothing in the accounts to freeze as we do not have overdrafts. Would this be ok as we would notify the Insolvency people of the three bank accounts is this ok.

the co-op are one of the few banks that allow an undischarged bankrupt person to hold a basic account with them; they would possibly allow you to keep the accounts open through a bankruptcy application + order.

At what stage do we need to start transffering DDs and incoming like disability benefits and wages, should we be doing it now.

if you money is currently being paid into an unsafe ac you should move it asap.

When you print the forms off and take them to the court is that when the money is payable?

yes

When do you apply to have court fees waved in my case because I only have DLA & SDA.

you would hand in the cour-fee exemption form at the same time as the petition.

Do I need to inform or include utilities as we are not in arrears with them and they would not be creditors?

the OR are liekly to inform them; beaware that they *may* request a deposit, meters or a guarantor

As we are both declaring BR should we do it separately or at the same time.

that is entirely up to you.

[marg41]

Thank you

[marg41]

We are now 26 days away from this being totally statute barred. Still no action so is it worth complaining to the FSA. We moved from the property 11th Nov 1997. They have known are present address since mid 2000 so they have plenty of opportunity to act but have waited until now.

Any advice as to how to complain would be welcome.

[sequenci]

We are now 26 days away from this being totally statute barred. Still no action so is it worth complaining to the FSA. We moved from the property 11th Nov 1997. They have known are present address since mid 2000 so they have plenty of opportunity to act but have waited until now.

Any advice as to how to complain would be welcome.

 

The 12 years runs from the point when action could have first been brought. When did you make your last payment and what were the default terms within the agreement?