Mortgage Shortfall County Court Claim Help Needed

[Loser4u]

My partners house was repossesed in 2000 and sold for a lot less than the outstanding balance.

 

DLC where chasing the debt and unfortunatley she was making regular payments but would never have cleared the outstanding balance unless she had lived to about 300.

 

We never received a copy of the original court judgement and couldn't get a breakdown of the sale price or how the outstanding balance had been calculated. So sent a DSAR to DLC followed by an account in dispute letter when they failed to supply anything. They quickly ran away and passed the debt back to the Halifax. We stopped the payments at this time.

 

Sent DSAR to the Halifax who returned our letters account unknown - They still cashed the payment though. Sent account in dispute letter and after lots of futher correspondance they sent a one page account summary letter and say they have complied with the DSAR and if we don't resume payments they will commence legal proceedings. Reply to say they haven't complied and this is quickly followed by a county court claim form similar in format to the thread below.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?160830-Shortfall-Court-Summons-URGENT-help-needed-please!&highlight=halifax+dsar

 

Acknowleded receipt of service on the day service was deemed to have happened and still have a week left to file 1st defence which will be similar to the above thread.

 

I have kept up correspondance to the Halifax in that the DSAR still not complied with fully.

 

Sent a CPR31.14 to the solicitors acting on behalf of the Halifax by recorded delivery on the same day as acknowledgment and as expected have not have not recieved any reply.

 

Had an update from the Halifax on DSAR and now have

Mortgage conditions from the original lender dated 1989 - 2 pages with no reference and not linked to any other documents & no signatures.

 

Loan Application form signed by both applicants 1990 . No reference to the above terms and conditions

 

A breakdown of payements covering Oct 1992 - Sep 2000 No account numbers or refernces

 

Debt Summary covering the same period which looks like a yearly summary. Lots of charges and fees.

This has both borrowers names and account numbers.

 

The response letter also has the following statement "Under the Data Protection Act an individual is entitled to a copy of all information that is held in a relevant filing system, unfortunatley this does not include any paper files such as a copy of your mortgage file / repossesion file. If a customer wishes to obtain a copy of this paper file then they would need to apply for a court order and then we would comply with the request."

 

Is this correct ? or more bull / misinformation or am I right in thinking that these are structured files as they are refered to as "your Mortgage File / Repossesion file" and applies to all structured files regardless of format or when created with access requested after 21st October 2001.

 

If our memory serves us right we knew we had issues paying two mortgages with only one income and we asked for permission to rent the property which the Halifax refused without the other borrowers signature (He disappeared about 7 years previously) The Leeds had agreed but between us first asking and then being a position to start renting ownership changed to the Halifax.

We got an offer for a sale and asked for this to be taken as full and final settlement this would have left a shorfall of around £2k a lot better than the sale price they achieved and this again was turned down.

 

What other documents should I be requesting when sending in my request for directions with the defence.

 

Apologies for the long winded post and all help appreciated

[Loser4u]

Any comments on this as defence

Defence

Except where otherwise mentioned in this Defence, I neither admit nor deny any allegation made in the claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

 

In an attempt to further this case, I wrote to the Claimant on **/**/2010 (see attached letter marked “Exhibit Loser4U 1” via Special Delivery and received by the Claimant on the **/**/2010. The request was made for disclosure of all documents and information under The Civil Procedure Rules, Pre-Action Protocols; documentation which the claimant sought to rely upon in this case and, which would help me to prepare my Defence and expedite the case.

 

To date, the Claimant has ignored my request, failed and has failed to supply any information at all. Furthermore, the Claimant has also failed to state any such reasons for their failure to comply. I therefore consider this an attempt to frustrate proceedings and make it difficult to compile a Defence to the allegations in the Particulars of Claim.

 

Without disclosure of the aforementioned documentation, I would like to draw to the court’s attention to the fact that, as a litigant in person, it is proving difficult to compile a fully particularised Defence in response to the claimants particulars of claim.

 

I believe that the Claimant has a duty under the Civil Procedure Rules to supply documentation relating to the Particulars of Claim, in accordance with Practice Direction 16 paragraph 7.3, which states :

 

7.3

Where a claim is based upon a written agreement :

 

(1)

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, and

 

(2)

Any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

The Defendant avers that the claim is for the same monies which were the subject of previous proceedings in which the claimant obtained possession of the property on the **th **** ****. Accordingly this claim is vexatious and/or an abuse of process and should be struck out pursuant to Part 3 CPR.

I now turn to the figure of £ **,***.

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 £**,*** represented the best price reasonably available on the sale of the property. A reasonable price would have been not less than £**,***

Notwithstanding the above, it is my belief that this figure contains a proportion of accrued interest under the Mortgage Agreement/Deed referred to by the Claimant, which should have been separated from the principal sum owed under the mortgage account. I put the claimant to strict proof that the sale proceeds where apportioned to the outstanding balance as per the Mortgage Agreement/deed referred to by the claimant.

 

Any such interest contained within the amount should be considered a separate cause of action.

a. The amounts claimed of £ **,*** does not contain any accrued interest;

 

The Claimant's claim to be entitled to discretionary interest to the sum of £**,*** 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.

 

I therefore request that the court consider striking out the Claimants particulars in view of their failure to supply any supporting documentation with the particulars and their failure to comply with the Civil Procedure Rules, in particular part 16 and Practice Direction 16. It is my opinion that the Claimant appears to have frustrated these proceedings by failing to disclose the requested documentation upon request and for behaving vexatiously.

 

Should it not be considered acceptable to strike out the Claimants particulars, it is respectfully requested that the court orders the Claimant to supply the requested information forthwith and I respectfully request that the court grants permission for me to amend my Defence accordingly, when the claimant discloses the aforementioned documentation.

Thanks

[Guest MamaG1]

This is really good responce and defence Loser4.

 

Good luck with your defence, it will be nice to know what has happend after this defence pls.

 

I have been off for a while as I have been quite unwell.

[Loser4u]

Update

Its getting time to complete the N150 form

Should I amend my defence regarding the SAR reply

Signed application form with no terms or conditions - what can I use

Copy of terms and conditions from previous year from a different building society and not signed so these are not relevant

Breakdown of payments / credits which has the same balance but a different sales price to the completion page provided with the claim - can i use this?

As expected had nothing back from my CPR request except two letters to say they have received my defence and "it is always their intention to negotiate settlements to avoid court costs should the matter be listed for trial".

[Loser4u]

Update on this

Have had preliminary hearing – which was a first for me

Judge gave their solicitor a hard time and refused most of what they asked for and agreed with most of what we asked for without us having to ask for it.

(I had a list of what I wanted and ticked them of as judge said them)

Solicitor also wasn't happy when we kept telling him, and showing him evidence, that contradicted what he said he had been advised of by the solicitor handling the case.

Anyway the outcome is draft directions which includes full disclosure by the other side and all the other usual requirements regarding what both sides need to do along with timescales.