Is this a mistake or Fraud? ***WON***

[frettful38]

I have started a new thread because I want to stick to one fact. I have tried to do it in my other thread but believe that it has become overcomplicated and will stick to this if that's ok.

 

I have a court hearing on Thursday and would like some advice as it is very important.

 

In Feb 2000 I received a judgment against me for 2758.60. This was a Final Costs Certificate. All it said was that I should pay the claimant this sum within 14 days of the order. There is no mention of interest in the final costs certificate. The claimant did not accept my offer to pay in installments.

 

Then in Nov 2002 he placed a caution on my property. The claimant never once chased me for this judgment of 2758.60. Then in 2004 I had to remortgage my house to pay off my husband's bankruptcy debt. In Jan 05 my husband's debt was satisfied through the Trustee in Bankruptcy via my mortgagee.

Then the claimant was refusing to remove his caution from my property unless my judgment debt was paid. If he did not remove his caution my mortgagees could not release funds. The claimants solicitors expressed the sum of 6191.80 to release the claimant's caution. At that time I was desperate to end this as soon as possible or house would have been repossessed. I wrote to the claimants solicitors what the sum of 6191.80 and each time they wrote back saying this matter has been sorted.

 

Anyway through the provisions of my remortgage my judgment and my husband's judgment debt were satisfied.

 

Earlier this year I have discovered that the claimant has received an overpayment. He was not entitled to claim so much interest on my judgment. His solicitors I believe deliberately miscalculated this sum, and this has not only caused me great mental stress but also a financial loss.

Because of this overpayment I had to go on a interest only mortgage.

 

I have put a claim against the claimant that he should return this overpayment back with interest, but my question is should his acting solicitors be responsible for this negligence? I asked the court for a certificate of satisfaction this year and the claimants solicitors have written to the court that this debt has not been paid. I remortgaged my house for the sole reason to pay this debt and they are claiming that I have not.

 

They have lied to the court and they had made me believe I owed more money than I should have. Also that claimant cannot charge interest on judgments under £5k no matter how long it takes to pay.

 

I am in court this thursday and would like to hear anyones comments or ideas

[frettful38]

If someone could tell me for certain or quote me the fact in law that judgments under £5k cannot have interest claimed on them, then it would be very very helpful in my hearing on thursday. I could point out to the judge that the claimant not only received an overpayment but was also not entitled to claim any interest at all.

 

Judgment was in Feb 00 and paid in Jan 05, was the claimant by law entitled to claim interest. No provision foe interest in the Final Costs Certificate

[postggj]

what ican tell you is that when a N1 claim is submitted to the court,

if claiming interest post judgement is not in the pertic of claim

 

they would be in trouble if they started to claim interest if not in the poc and

 

not in the final judgement

 

you need to see the final judgement from the court

[frettful38]

Thanks postggj,

 

I would have more success in getting blood from a stone than to get any information from these solicitors. I have tried for years to get them to answer my questions and all they ever replied was get lost or else? not in those exact words but no far off either.

 

All I have is a copy of the Final Costs Certificate and nothing else.

 

 

This is a copy of my husband's judgment, mine is exactly the same but for 2758.60

Edited December 4, 2009 by frettful38

[babybear39]

Do you have proof of paying the judgement?

[frettful38]

Hi postggj,

 

Is the above not the final judgment?

[frettful38]

Do you have proof of paying the judgement?

 

 

Do I have proof, YES!

 

I had to remortgage my house to pay off these debts, my mortgage redemptions shows how the proceeds of my remortgage were distributed. I have evidence from the trustee in bankruptcy that my husband's debt has been satisfied, and my mortgagees have sent the claimants solicitors a payment of 6191.80 in Jan 05.

 

There is no doubt whatsoever that this debt has been paid,

[babybear39]

They're trying it on then. I sugest you see a solicitor for a free initial consultation.

 

Can you scan and post your actual judgement please? If you don't have it a quick phone call to the court should sort you out a copy.

[legalpickle]

When did you issue this court claim? Against whom did you issue it?

 

You say the hearing is on Thursday, why did you not ask for help before now, leaving it a bit late isn't it?!

 

Interest can be claimed on a judgment debt up till the date of judgment, if below £5k. However where a contract provides for interest to be paid beyond that date then it can be claimed even if the judgment debt is below £5k.

 

Where the judgment debt is above £5k, statutory interest can be claimed beyond the date of judgment till the date of payment, unless there is a contract that provides for a higher rate of interest to be paid, in which case that can be charged till the date of payment.

 

All this are except if the court orders that interest can or can't be charged on the judgment from date of judgment till date of payment.

 

You cannot claim against the Solicitors as they are not your Solicitors and they acted on behalf of the Claimant. You must claim against the Claimant.

 

Please do not PM for advice, more than "Please can you look at this thread...". It does get annoying.

[frettful38]

Thanks legalpickle,

 

My claim is not against the solicitors it against the claimant as he is the one who has received the overpayment, but it was his solicitors who calculated the interest and they have been negligent however you look at it.

This is how they claimed interest. They calculated from date of judgment 08/02/200 of £2758.60 to date of payment 05/01/2005 as being 2157 days. In fact it is 1793 days not 2157 days.

 

The solicitors expressed the sum of £6191.80 in total, which includes the judgment debt and interest. They claimed £3,433.20 interest on the judgment and should have claimed £1,088.16.

 

The full amount owing to the claimant under the judgment was £3,846.76. This is calculated at judgment debt £2758.60 plus interest over 5 yrs at 8% p.a. (£1,088.16) giving a total of £3,846.76. The overpayment was therefore £2,345.04.

[frettful38]

legalpickle quote

 

"You cannot claim against the Solicitors as they are not your Solicitors and they acted on behalf of the Claimant. You must claim against the Claimant."

 

I accept they were not my solicitors but they are the ones who calculated this figure. A few pounds up and down would not have mattered but £2,345.04 is quite a big mistake

[legalpickle]

Thanks legalpickle,

 

My claim is not against the solicitors it against the claimant as he is the one who has received the overpayment, but it was his solicitors who calculated the interest and they have been negligent however you look at it.

This is how they claimed interest. They calculated from date of judgment 08/02/200 of £2758.60 to date of payment 05/01/2005 as being 2157 days. In fact it is 1793 days not 2157 days.

 

The solicitors expressed the sum of £6191.80 in total, which includes the judgment debt and interest. They claimed £3,433.20 interest on the judgment and should have claimed £1,088.16.

 

The full amount owing to the claimant under the judgment was £3,846.76. This is calculated at judgment debt £2758.60 plus interest over 5 yrs at 8% p.a. (£1,088.16) giving a total of £3,846.76. The overpayment was therefore £2,345.04.

When did you issue your claim???????

 

What did they submit as a defence????

 

What was written in your PoC????

 

Did you write anything in response to their defence???? What????

 

Without all the facts I cannot and will not make a recommendation.

 

legalpickle quote

 

"You cannot claim against the Solicitors as they are not your Solicitors and they acted on behalf of the Claimant. You must claim against the Claimant."

 

I accept they were not my solicitors but they are the ones who calculated this figure. A few pounds up and down would not have mattered but £2,345.04 is quite a big mistake

So what? Your claim is against the claimant in that action. If they want to claim some sort of professional negligence against the Solicitor that is their issue. Don't complicate matters further by trying to do that yourself when there was no contractual obligation between you and the creditors solicitors!

Edited August 10, 2009 by legalpickle
simulataneous post by OP

[frettful38]

Hi babybear I just rang the court and they said that there was no judgment against me. The final costs certificate was just what the judge said I had to pay the claimant, they have no record of any judgments against me.

 

The claimant enforced my husband's judgment debt by making him bankrupt, but he never enforced my judgment debt.

[frettful38]

Thank LP,

 

I am not trying to complicate matters, all my claim is against the claimant is that he should return the overpayment that he received.

[postggj]

ill keep lookin in

(confused}

 

over to you legal pickle

[legalpickle]

Please answer my questions then!

 

When did you issue your claim???????

 

What did they submit as a defence????

 

What was written in your PoC????

 

Did you write anything in response to their defence???? What????

 

Without all the facts I cannot and will not make a recommendation.

By going to in depth to the fact that the claimant's Solicitor may have acted fraudulently you mix up issues. That is to do with the then claimant, now defendant, not to do with you.

 

I see it often with other Litigant's in Person, where because the claim is so personal to them, they involve loads of issues that are not directly relevant to their claim. Quite often this results in their claim, or defence, getting struck out or at least getting the judge VERY frustrated with them.

 

You have to explain the claim concisely and simply so that the judge - and anybody not involved - will understand it as quickly as possible.

 

What exactly is your claim for? What exactly happened? What exactly is the defendant's defence? What exactly is your response?

 

When did you issue the claim? Can you post copies of the Poc, defence and all other relevant documents (not evidence) minus confidential information?

 

I am not going to give advice without the whole story.

[frettful38]

Thanks LP, here is my claim and poc

 

1. On the 8th Feb 2000 the court ordered me to pay costs to the defendant in the sum of 6191.80

 

2. In Jan 05 I paid 6191.80 to the defendant via my mortgagee in satisfaction of the above debt, which was a sum expressed by the defendant to the full amount owing including interest under that judgment. In consideration of this payment the defendant released his caution on my property.

 

3. After paying the above sum I became aware that the full amount owing to the defendant under the judgment was £3,846.76, this is calculated at judgment debt £2758.60 plus interest over 5 years at 8% (£1,088.16) giving a total of £3,846.76.

 

4. The overpayment was therefore £2,334.04. Despite requests for the return of this money the defendant has refused to do so.

 

5. My husband's judgment debt plus interest was satisfied in Jan 05 by payment to the trustee in bankruptcy of £40,000. which satisfied the defendant's judgment.

 

6. The amount owing to the claimant is the amount of overpayment £2,345.04 plus statutory interest of £849.49

 

 

I had an allocation hearing on the 16th July 09 but was adjourned because the judge said there was no causation in my case and needed to amend the particulars of claim, which I have. I submitted an application notice to amend the particulars of claim.

The defendant's response was that he denies all allegations of overpayment being made to him, and he also put a claim in to have my case struck out. Both his application and my application will be heard this thursday.

 

Hope that makes a bit more sense LP

[legalpickle]

Thanks LP, here is my claim and poc

 

1. On the 8th Feb 2000 the court ordered me to pay costs to the defendant in the sum of 6191.80

 

2. In Jan 05 I paid 6191.80 to the defendant via my mortgagee in satisfaction of the above debt, which was a sum expressed by the defendant to the full amount owing including interest under that judgment. In consideration of this payment the defendant released his caution on my property.

 

3. After paying the above sum I became aware that the full amount owing to the defendant under the judgment was £3,846.76, this is calculated at judgment debt £2758.60 plus interest over 5 years at 8% (£1,088.16) giving a total of £3,846.76.

 

4. The overpayment was therefore £2,334.04. Despite requests for the return of this money the defendant has refused to do so.

 

5. My husband's judgment debt plus interest was satisfied in Jan 05 by payment to the trustee in bankruptcy of £40,000. which satisfied the defendant's judgment.

 

6. The amount owing to the claimant is the amount of overpayment £2,345.04 plus statutory interest of £849.49

 

 

I had an allocation hearing on the 16th July 09 but was adjourned because the judge said there was no causation in my case and needed to amend the particulars of claim, which I have. I submitted an application notice to amend the particulars of claim.

The defendant's response was that he denies all allegations of overpayment being made to him, and he also put a claim in to have my case struck out. Both his application and my application will be heard this thursday.

 

Hope that makes a bit more sense LP

Well your Particulars of Claim are misleading and incomplete! No wonder the Defendant has applied to strike it out! You are risking costs in the Application hearing as an Application hearing can have unlimited costs, unlike a small claims final hearing.

 

What I would have written - if I understand your claim properly - is this:

 

 

1. On the 8th Feb 2000 in Claim Number .... I was ordered to pay the Defendant the sum of £2,758.60.

 

2. In January 2005 I paid £6,191.80 to the Defendant through the Defendant's Solicitor's ...., which was the sum advised by the Defendant's Solicitor's, on the Defendant's behalf as the sum owing. In consideration of this payment the Defendant removed the caution registered on my property.

 

3. After paying the £6,191.80, I became aware that the actual amount that I was ordered to pay the Defendant under the judgment was £2,758.60.

 

4. I therefore overpaid the Defendant the sum of £3,433.20. Despite several requests to refund this money, the Defendant has consistently refused to do so.

 

5. The Claimant therefore claims the sum of £3,433.20 plus statutory interest of £.... since the date of overpayment.

 

 

I don't understand the relevance of:

5. My husband's judgment debt plus interest was satisfied in Jan 05 by payment to the trustee in bankruptcy of £40,000. which satisfied the defendant's judgment.

If this was meant to cover the judgment debt against you, then it was paid double and you should be claiming the originally paid amount in full, plus interest. If not, then it is irrelevant.

 

Also, my understanding was that there was no order that interest should continue to run on the debt till it is paid, therefore the amount you wrote in 3 is incorrect, as is the interest calculation on the overpayment.

3. After paying the above sum I became aware that the full amount owing to the defendant under the judgment was £3,846.76, this is calculated at judgment debt £2758.60 plus interest over 5 years at 8% (£1,088.16) giving a total of £3,846.76.

From seeing this and recalling minor details of another thread of yours, may I recommend that BEFORE issuing ANY claims in future, you seek advice, as - no offence meant - you obviously do not have the ability to handle the claim on your own initiative. There is a high risk you will be liable for costs in this action due to not phrasing your PoC correctly, which would be a double lose for you!

 

I mean no offence or insult, instead constructive criticism. It is better to get advice first and succeed in your claim than end up losing and having to suffer the consequences. I hope the Judge takes mercy on you and lets you rephrase the PoC correctly.

 

Which court is your hearing in?

[frettful38]

Thanks for your advice LP, these were not my words.When I had to amend my poc I went to see a solicitor and these are the words that he wrote down for me.

 

I will take a note with me on thursday and hope the judge will allow me correct this. This claim has nothing to do with my husband's judgment debt, thats all over and done with.

 

The defendant has applied to have my claim struck out on the basis of my original claim. It was only this Friday just gone that he received the amended one and I have not heard anything from him yet.

 

When I go to the hearing on Thursday should I inform the judge that paragraph 3 should be like you said above. I mean I went to a solicitor who helped me amend my claim, so I did get legal advice, obviously not as good as it should have been, but no surprises there hey.

[legalpickle]

Thanks for your advice LP, these were not my words.When I had to amend my poc I went to see a solicitor and these are the words that he wrote down for me.

 

I will take a note with me on thursday and hope the judge will allow me correct this. This claim has nothing to do with my husband's judgment debt, thats all over and done with.

 

The defendant has applied to have my claim struck out on the basis of my original claim. It was only this Friday just gone that he received the amended one and I have not heard anything from him yet.

 

When I go to the hearing on Thursday should I inform the judge that paragraph 3 should be like you said above. I mean I went to a solicitor who helped me amend my claim, so I did get legal advice, obviously not as good as it should have been, but no surprises there hey.

 

1. You should have got advice BEFORE ISSUING the claim, not waited till you realized it needed amending!

 

2. A Solicitor's advice is only as good as what the customer tells the Solicitor. If you didn't explain the whole issue to the Solicitor, the Solicitor would have given you incorrect advice. If you did tell the Solicitor everything then you should complain to the Solicitor and take it to the LCS when this is over, to try and get compensation from the Solicitor.

 

3. No, don't take a note to the court. It will confuse matters even more! Retype the PoC as I have written it, add the statement of truth onto it and print off 3 copies, sign them all and take them all to court. Prepare a cover letter saying you realize you have made a mistake and apologize to both parties for that. Being a Litigant in Person with limited knowledge of the court procedure, you would request the court's mercy in dealing with this matter and that the court would accept this Amended Particulars of Claim as the final Particulars of Claim. Draft a letter and post it up here - minus confidential details - so it can be proofed first. Once you have the proofed version take 3 copies to court. Before the hearing had one copy to the Defendant and ask the clerk to give one copy to the Judge before the hearing.

 

4. I repeat my question in the previous post. Which court is the hearing in?

 

Please attempt to read my whole posts before responding and respond to the whole post rather than just responding to part.

[frettful38]

Thanks LP,

 

I will do that and the hearing is at aylesbury county court. My scanner does not work so will be unable to scan up the new amended and final claim.

[babybear39]

You can copy and paste it from word or whichever programme you're using.

[frettful38]

Thanks BB, will do this straight away.

[legalpickle]

Don't forget to remove confidential information from it when pasting it on CAG. You can also attach it as a file.

[frettful38]

I am having trouble saving the file. The N1 form will not allow me to save data on it, therefore I am unable to attach a copy.

 

Legalpickle I will re-write out the particulars of claim as you advised and correct the wording and submit it at the hearing. I will copy off three copies and give one to the defendant and one to the clerk.

 

Sorry I cannot manage to copy up here what I have done, if someone could help on how to do it some other way would be great,