difficult landlady not returning unprotected deposit

[Adversity]

ok long time since an update but a significant one none the less.

 

I went to court on the 21st december and as expected, the judge made the order that the money be paid to me, the breakdown was:

 

1. Full deposit returned "by the person the judge understands to be holding the deposit" - £650 (in this case it was the estate agent because the money was paid to them, and they admitted they were holding it)

 

2. 3X the deposit to be paid by the landlord - £1,950

 

3. interest of £11.48 and court fees of £150 to be paid by the landlord

 

all by...the 7th of january. which has passed.

 

now i didnt receive my copy of the order untill saturday (9th january) so its safe to assume they didnt get theirs untill then either. however a friend of mine who is training as a barrister, says this has no significance - whats written on the order is final, so they have no case to say "we didnt know about it". fact is, they have known it was likely they'd have to pay, since august!

 

obviously, neither have paid any money, and to throw a spanner in the works, the estate agent wrote to me after the court date (but before they received the order) saying they HAVE paid, in a curious letter that had a staple through the top...but nothing attatched. im not worried about this as the chances are, they have no proof they paid the money, most of all - because i can prove i havent received it.

 

so it looks like im going to have to enforce the order on both of them, which is **** i wouldve thought having an order against you is enough incentive to pay, but for these crooks - obviously not.

 

Ive read through the leaflet on enforcing the order and am looking to make the necassary steps immediately. can anyone help me at this stage? given their reluctance and ignorance of the law, am i likely to ever receive anything?

Edited January 11, 2010 by Adversity

[NewSAHD]

This is pretty much my first visit to CAG in 2010 - and it seems that your persistence might have brought you a happy (even happier?) New Year.

 

So, Happy New Year!

 

My input here has been small in comparison to the other posters. I bow down to their collective knowledge . For my part, I would suggest that you can't make someone physically pay you, as such, but you can pursue various options.

 

Deal with the Estate Agent first, as this is quicker and easier, for now.

 

Firstly, check if they are members of ARLA, ARMA, NAEA or RICS. Post a message here to say which of these (or others) they show on literature/website.

 

Say nothing, at this stage, to the Estate Agent/"acronyms" about this, although (sadly) being a member of some acronyms may carry less weight than some think, perhaps.

 

In relation to the Estate Agent, however, I would simply call them tomorrow.

 

Then, after your call, send an email confirmation to them setting out what was agreed in your call to them - also pointing out, in writing, that no cheque was originally attached.

 

Not attaching a cheque happens, of course, but it does still seem a little odd.

 

The Estate Agent will need to cancel the first cheque and will have to do so at their own expense. I wouldn't mention the question of cost to them though. If they comment upon such a cost, then, be prepared to knock them down - i.e. this was not your mistake and clearly you just want your money now, please, there is little point in you saying you did not get they cheque if you did... and so on and so forth.

 

If they are local to you you could suggest you will collect the replacement cheque, what with the snow/post and so on.

 

Doubtless you may be told the signatory is away / on holiday / snowbound / in clink - although they should have made arrangements to cover this - so, in addition, have them confirm a date to arrange a direct transfer (instead of a cheque) in to your account by a certain date (that you can agree with them, no more than, say, 5/7 working days tops from now?).

 

And so on i.e. be polite, but firm, and don't give them any room to manoeuvre !

 

You should quickly know at the time of your call to them if you are to be given the run around. Mistakes happen, but it's what the Estate Agent does now to make amends for their mistake that counts, for now.

 

As for your Landlady, well, time to immediately start some discrete digging, just in case.

 

First impressions sound less hopeful, for now, so at the outset, can you confirm whether she operates under her own personal name, or a company name, whether she works solely for herself, or for any other company, including working as an employee?

 

Don't post any names on the forum, but you are welcome to send a PM if you wish. For my part I confirm any PM sent to me will only be used to assist you and for no other purpose.

 

Lots more questions to ask, perhaps, but our own post (here at home) from around Christmas was only delivered this afternoon . So, might be worth hanging fire with the Landlady for a short moment, to see what, if anything, turns up in the post.

 

Who knows, maybe the white Christmas may have brought her a change of heart - and your cheque is on it's way as we type!

Edited January 11, 2010 by NewSAHD
typos

[Adversity]

hats off to you sir for your informative post! the judgment was indeed a welcome early christmas present, even if it is only a small piece of a much bigger picture, it was an enormous relief to have the order to wave infront of their faces, as both parties have assumed they are much bigger than the law up to now.

 

the estate agent:

 

a quick snoop on their website doesnt show any of the acronyms you mentioned, however "OEA Ombudsman" and "OFT approved" logos are displayed clearly on their front page, does that help? they arent local to me by a very long distance but operate in the UK

 

To be honest im reluctant to call because of the abuse I've had dealing with these people before, and while I know its in my best interests and that I am in the right here, I dont really want to give them the pleasure of screaming at me down the phone. if it needs to be done, I will, but i would prefer to email.

 

about the "cheque" - now this is where it gets a bit messy. the estate agents sent me a letter 2 days before the hearing on the 19th December, which didnt mention the fact the deposit had never been protected, instead listing a load of irrelevant excuses about the previous estate agents incompetence (the landlady changed them midway through our tennancy) and said "we have been requested to return THIS deposit to you, however THIS deposit amount may still be recalled by the court as part of a dispute between your landlady and previous estate agents"

 

this letter had a staple through the corner but no cheque, no money, nothing. it didnt even specify how much money they were returning to me, or what method. it just kept referring to it as "this" deposit, implying it was included.

 

obviously I am aware that these were probably scare/stall tactics to get me to stop proceedings, which was mentioned as a footnote of the letter saying "i strongly suggest you withdraw proceedings to avoid counter action". if there was to be such counter action, why was it never issued as a defense to the original claim? because there is no counter action thats why.

 

i replied to that politely saying i would not stop proceedings as the estate agent had no right to request that, and they wrote back on the 23rd december saying "as we have now repaid your deposit there is no need for further communication"

 

so they are saying they sent the money, they arent saying how, when, how much or to whom, but seem confident they did, and i havent received a penny.

 

whether theyll change that story now theyve received an order i dont know, but i drafted this letter earlier:

 

As per the court order issued on the 21st December 2009, you have been ordered to pay the full deposit of £650 towards the property stated above, to me, by 4pm on the 7th January 2010. Contrary to your letter dated 23rd December 2009, i have not received these monies from you, and expect to receive proof of payment sent immediately. I am currently preparing and considering the different options of enforcement and remind you at this stage that any costs incurred through enforcing this order will be added to the judgment debt.

 

I request the payment of £650 (six hundred and fifty pounds) sent by Cheque to: "

 

too forcefull?

 

 

the landlady

 

i am aware of at least 4 other tennancies which have not received their deposits, but havent made contact with any, i dont know if this is in my best interests but ive kept my distance. basically, shes in a lot of money trouble if the rumors are true. the first estate agent we were with say she owes them a lot of money and isnt paying. all i know about her is she runs a property development company overseas, shes british, living in britain, the house we rented isnt in her name but is in her husbands name, the bank account we paid rent to is in both their names. its difficult to say yet which method of enforcement will be most succesfull but it seems getting an "order to attend" is the logical first step.

 

i doubt shes had a change of heart, for the reason she doesnt seem to have one! she lied to us from the offset saying she would look after our deposits and requesting we withdraw it from mydeposits.co.uk and send it to her. if only we'd known!

 

thanks for everyones help though, the judge was very complimentary of my "well put together case" and i had to admit i had pulled example wordings and templates from here so a gold star from our local county court for everyone at consumeractiongroup for your help!

[NewSAHD]

"hats off to you sir for your informative post!"

 

You're welcome, but I'm mindful of MrShed and KentishLass, so hopefully they will be along soon too!

 

It's getting late, even for me, so I will hold off replying in too much detail for now - will be back as soon as can as will others at CAG I'm sure to answer your specific post.

 

I had to reply now though to say please don't worry about abusive telephone calls from/to/with these idiots.

 

My MP3 has a very sensitive microphone and picks up conversations even when it is tucked inside an inside coat pocket (don't ask, but funny, to me at least) and works equally well on telephone calls. My old mobile did the same for calls, but haven't properly worked out my new one yet.

 

Play around with your MP3 player / mobile, perhaps, so you can easily record the call... yes, I've heard not admissible, but that's not the point. All you are doing is recording facts for (possible) leverage later, so don't let on what you're doing and, above all, be reasonable and try to stay calm when you call the Agent.

 

I say ''when"' as need to cut to the chase now.

 

So, whilst need to consider pros and cons of calling the Agent, I would be tempted to call them and say:

 

- you have their letter of DATE, but no cheque was attached

- how much was it for please

- please reissue (ALONG THE LINES SET OUT)

- get confirmation of exactly what it is they they say they sent and what they will do to remedy

 

and, above all, record the conversation. Be reasonable with them and let them do the talking too, if you can.

 

If they are a UK wide agency they should, relatively easily, be able to say

 

- to whom the cheque was payable

- the cheque number

- the amount, obviously,

- if it has cleared

 

They say they sent it, it was not attached, what will they do to sort this out rapidly once and for all (please).

 

As for OEA etc look to build up / add to your case so you can, a little later, send irrefutable proof (by way of emails as to what was agreed and records of calls as to what was discussed).

 

You may be dealing with skunks, who, possibly, have a lawyer advising them, hence the letter you received, but the truth will out.

 

As before, not a lawyer, so welcome other views to help you stitch the landlord and agent up. Sorry, help you resolve any misunderstanding on the part of the landlord and agent

[bedlington83]

As per the court order issued on the 21st December 2009, you have been ordered to pay the full deposit of £650 towards the property stated above, to me, by 4pm on the 7th January 2010. Contrary to your letter dated 23rd December 2009, i have not received these monies from you, and expect to receive proof of payment sent immediately. I am currently preparing and considering the different options of enforcement and remind you at this stage that any costs incurred through enforcing this order will be added to the judgment debt.

 

I request the payment of £650 (six hundred and fifty pounds) sent by Cheque to: "

 

too forcefull?

Too soft. There's no need for you to ask for the money because the court has ordered that it be paid to you. Why are you even contemplating talking to these people? You have judgement. They haven't paid. Start your preferred enforcement method immediately.

[bedlington83]

Play around with your MP3 player / mobile, perhaps, so you can easily record the call... yes, I've heard not admissible, but that's not the point.

My understanding, and I'm not a lawyer, is that the recording is inadmissible but a transcript of it is

[Adversity]

I dont quite know how to react to this but...

 

the estate agent has told me he is sending the cheque on friday! i wont celebrate untill the money hits my bank account but still, this is the FIRST time i 4 drawn out months that i have had any indication i would ever see my money again!

 

WOOOO!

[Adversity]

ok i thought it was short lived...ive had a letter from a court in england telling me the claim has been transferred to them for the defendant to make an application to "set aside the judgement"

 

how?!! what does that mean

[NewSAHD]

From what you have said this stinks...

 

Have sent you a PM as I think CAG does not like other links being provided on the forums. Have a read through and then post back

 

You said earlier that she claims to be a solicitor too - how so and do you have anything in writing to that effect?

Edited January 21, 2010 by NewSAHD

[Adversity]

thanks for that, it is desgusting. i cant believe someone who has the black and white of the case outlined STILL cant see that theyve done wrong! the simple fact is our deposit was not protected, so there is no way there is any grounds for appeal. in my eyes anyway.

 

theres not indication on the notice of transfer of proceedings i had today as to what the defendants reasons for applying are, it doesnt say which point of the CPR she is using as grounds to set aside the judgment.

 

ive spent best part of the evening reading through the CPR, in particular part 13 which is "setting aside or varying judgment".

 

looking through each point, there are very few if any I believe the defandant has grounds to apply, apart from 13.2© which says:

 

"The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly entered because – the whole of the claim was satisfied before judgment was entered."

 

 

first and foremost i will say this is definately not the case, the case was not settled before the hearing and i havent received a penny. however if you read back through my posts i have posted details of a letter i had from the estate agents who were illegaly holding the deposit, the day before the court hearing which said "we have been requested to return this deposit to you...know we have returned it there is no need to proceed". no money was returned, and im pretty sure they cant prove it was because i havent received anything! in the post, through my bank, by carrier pidgeon - nothing.

 

 

if this is her grounds for apealing the court order, surely it will be rejected on the grounds that there is no proof? i would really hope (and i am fast losing hope with the justice system over the way this is allowed to be dragged on and on and on at much cost to me) that the judgment will not be set aside?!

 

 

 

im more angry than anything about this latest development, this is surely escalating into the prime example of the worst landlord imaginable!

 

 

she does claim to be a solicitor in a few emails, i suspect more so to scare us off, because for a start i dont know why a solicitor would blatantly ignore the law by not protecting the deposit. either she isnt, or she is - and knows all about the loopholes that she continues to exploit. however i cannot find any other evidence of this.

Edited January 21, 2010 by Adversity

[Trinitrotoluene]

Adversity - Google her name. Solicitors names are usually put on firms websites or she will advertise her services likely on the net.

 

Good luck

[Adversity]

ok i received the defendants statement as to why she wants the order set aside, she has said

 

"i never received any court papers and didnt have a chance to defend myself"

 

"the money has already been paid"

 

to answer the first point, i actually had an email from her saying "... have received your paperwork. ..." and further reference to it in other correspondance since.

 

to the second point, i havent had any money, and surely she would be required to provide evidence to support that fact? which of course there is none. nevertheless, the application will be seen on the 23rd march and there is "no hearing" so i dont know how i get to put forward my strong evidence to counter her feeble defense :S

[Adversity]

am i able to submit further evidence to the court application at this late stage? because it would disprove both her claims.

[bedlington83]

I'm not sure about the procedure so I would suggest that you talk to the court staff tomorrow and find out exactly what to do but essentially you need to make the same points that you've made here to the court. You'll also need to provide the evidence (e-mail and further correspondence).

 

Given the circumstances I'd be inclined to ask that, given the defendants behaviour, the court considers awarding you costs at the litigant in person rate (which is £9.25 per hour) plus disbursements (e.g photocopying, postage etc, which you'll need to itemise).

 

I am not a lawyer.

[bedlington83]

And remember; this is just about setting aside the judgement so focus on that and not the reasons that gave rise to the claim in the first place

[Adversity]

thanks very much for help.Ill ring the court tomorrow.

 

Im quietly confident that these are desperate last ditch actions by the defendant, with little or no substance. after all, from her point of view if this setting aside application fails, she still managed to buy 3 months of time not needing to pay the order.

 

quite how the application could succeed when she supplied no evidence to prove that she had already paid is beyond me. a judge couldnt possibly award her that with no evidence?

 

im confident that the original claim has all the evidence needed for that to stand, Ill happily attend a second hearing if only to prove that her application for setting aside is invalid and nothing else. dragging right out this one is!

[Adversity]

ok quite a few developments for those who are interested.

 

i went to court on tuesday where the landlords application to set aside the judgement was to be seen (at a court far away from me!)

 

needless to say, she didnt turn up, nor had she entered a defense. the judge didnt take to kindly to this, and so rejected her application to set aside AND put an order on her that she can not make any future applications without a judges permission (so ever seeing as she quite simply has no grounds to)

 

after leaving the court with high spirits for the second time, i rang the estate agent who are holding the deposit, and so came the next wave of baffling excuses - this time it was "we thought you had already been paid? it shows on our system you cashed a cheque.."

 

all lies, and not at all surprising. so im going to hand the case over to a solicitor tomorrow, because its far to much work for me now - i have other pressing issues to be dealt with and these two crooks childish persistance is distracting me.

 

i will say this though - to anyone who thinks that suing the landlord for non compliance to TDS is straightforward - it isnt. it should be, but it isnt. there is far too much leniency in the british justice system and usually the perportrators know this. my landlord knew that nomatter how much i fought for this, 6 months down the line she STILL wouldnt have paid me a penny. this could well be the case for future months or years.

 

i hate to sound cynical but thats how i feel, i was unfairly manipulated and decieved my my landlord but there as yet have been no reprocussions for her, and untill a successfull method of enforcement of the order is executed, i will forever doubt the severity of ever breaking any laws.