Guarantor and possible court action...help needed.

[Belaflat]

Hi Steampowered.

 

The charges mentioned are £25 charged per letter to tenant and guarantor with a £25 late payment fee added so for a few pounds short of payment it turns out £75 is added to the account. He also added a £1 per day charge until these were cleared. This is what I was advised to counterclaim for although despite numerous requests, the landlord has failed to provide a statement of account. I have also requested a copy of the contract as signed and again it is not forthcoming.

 

The individual rejection per demand was because LL had initially sent a final bill for all the work claimed to have been done with individual amounts per item.

For example, a bill for redecoration throughout.

A bill for new carpets throughout, A bill for cleaning etc. A bill for supposed lost rent when he could not let out the property due to repairs ongoing. (Again deemed irrecoverable by the solicitor)

The total claimed on the first demand was higher than the amount claimed in the particulars of claim and also the claim only states an amount to recover costs to repair damage and lost future rent. It does not have any breakdown at all to distinguish between the items claimed for in the demand.

I did dispute these charges prior to receiving court papers so don't know if he has reduced the amount as a result of my challenges.

 

Thank you.

Edited April 26, 2015 by Belaflat
Forgot to add something.

[steampowered]

This is what I was advised to counterclaim for although despite numerous requests, the landlord has failed to provide a statement of account.

Have you actually paid any of these charges? If not, I don't think you could counterclaim. It would just be part of the defence.

[Belaflat]

Yes, I have transferred money across to the LL account to clear arrears and prevent charges mounting higher. They are generally included in the arrears although as stated, trying to get a statement of account is proving impossible. There is never a bill for charges alone, they were always added to the balance.

The solicitor I spoke to said he is well known for liking tenants on benefits of some description as he knows they are paid in arrears whereas he always wants money in advance.

This way he can apply charges and make more money.

He is well known in the area for tricks like this which is why I have the help of ward councillors who are trying to set up a group to bring landlords like him to account.

[steampowered]

A simple sample Defence is below, you need to adjust as needed:

 

1. The Particulars of Claim is denied in its entirety.

2. The Particulars of Claim vague and does not disclose an adequate statement of the facts relating to the alleged cause of action, contrary to CPR 16.4. No particulars have been offered in relation to the nature of the written agreement referred to, the sums which are being claimed or any other matters necessary to substantiate the Claimant's claim.

3. The Particulars of Claim relies on an alleged guarantee given by the Defendant. Pursuant to the Statute of Frauds 1677, no action may be brought in reliance of a guarantee only on the basis of a written document which has been signed by the guarantor. The Defendant is put to strict proof as to whether any such document exists, in the absence of which all liability is denied.

4. It is denied that there was any damage to the property referred to in the Particulars of Claim. The condition of the property was generally poor at the outset and there has been no further damage except for reasonable wear and tear, which is not recoverable by the Claimant.

5. The Defendant has no knowledge of any damage to the property referred to the Particulars of Claim. The Claimant is put to strict proof as to what damage has been suffered and the costs for repairing such damage.

6. Liability for "loss of rent" is denied. This is not recoverable under the terms of the guarantee, which is to be construed strictly in accordance with standard principles of interpretation.

7. Liability for arbitrary charges imposed by the Claimant without any clear legal basis is denied.

 

 

COUNTERCLAIM

8. The Defendant paid £... to the Claimant in view of the Claimant's unjustified and aggressive demands, on account of arbitrary charges for which there is no legal basis. The Defendant claims restitution of such charges. Further, the Defendant claims interest under the County Courts Act 1984 on such sums as are found due to the Defendant at such rate and for such period as the court thinks fit.

[Belaflat]

Thank you...sorry for late reply, got hit with redundancy at work so plenty of other things going through my mind.

I have adjusted as required and submitted.

Will keep you updated as things progress.

[raydetinu]

sorry to hear that; it happened to me a few years ago, went on my own as a consultancy and so far so good.

all the best for the future.

[Belaflat]

Have received Notice of proposed allocation to the small claims track.

Claimant has put he agrees to arbitration but I am thinking No...since he was not prepared to discuss when I offered him via e mail. (Solicitor says he will deny thing sand backtrack without any proof of conversation)

Going for my day in court as I can produce photographs there...would not be able to with mediation.

[letsmakeamark]

It mediation through a court mediator. This can work to your advantage. the mediator will call you a few days before your hearing. You can try and mediate on the phone you will not talk to the other party. The mediator does this. If things do not go as planned you can then still attend any hearing. The only thing that will happen is that the judge will be aware of you going to mediation. He/She will not know what was said and you cannot use anything from mediation in court.

[AndyOrch]

You must opt for mediation......irrespective...you will still get you day in court ...I assure you...unless they discontinue.

 

Andy

[Belaflat]

Ok....have opted for Mediation.

This should be interesting.

Just another question though...since I also have a counterclaim, what happens to that in the event of mediation concluding the matter.

[AndyOrch]

Mediation would/should also settle any counter claim

[Belaflat]

Still not got any further with the Court other than notification it is being transferred locally.

Spoke to my local Councillor who is helping me in all this and he tells me he attended an end of tenancy inspection for another friend (we formed a group on FB to share stories and try to help each other).

The Landlord in this instance was politeness itself apparently, the tenant was gobsmacked at the change in him. In this case though, the Guarantor is being pursued for so called arrears which amount to charges that the tenant was unaware of. It seems the LL has got wind of the help I am being given and has requested a private meeting with the Councillor.

I am not pleased about it but seems there is not much I can do. I have told my Councillor what I feel he is up to and he is awaiting an e mail for clarification re the meeting.

[Belaflat]

Latest update (is anyone following this anymore, lol)

 

Have today received copy of order from the Court that states...

 

IT IS ORDERED THAT

 

By 4pm on 22 July 2015 Claimant will send to the Court and to the Defendant an amended claim with specific detailed and particularised details of the dates and amounts claimed and legal basis for the claim to comply with CPR 16.4 and in default the claim is struck out.

 

I defended on the basis he had not sufficiently particularised his claim as the demand suddenly went from an itemised bill to a general sum without details of what was being claimed.

Those who have been following will know what he has been up to with bogus claims.

 

It's now a wait and see situation.

 

On a different note, a friend who was also being taken to court for arrears that were in fact illegal charges has come out on top as he has dropped the case against her.

My Ward Councillor also tells me that the LL has been contacting him regularly and demanding to know in what capacity he is representing me and what Council resources is he using etc....think he is feeling the heat.

[raydetinu]

Good luck, with any sense he will not continue, as judge will probably through it out anyway.

[caro]

Sounds like you've got him on the run.

[citizenB]

still with you Belaflat

[Belaflat]

Well the deadline was yesterday at 1600 and he did submit more information but if it complies with direction I don't know.

 

He sent a statement from himself claiming that I was denying being a guarantor but also that I had agreed to pay all his bills at the end of tenancy meeting. Since he wasnt there at that meeting I find that amazing.

 

He also claims in that statement that since I had asked him if he had obtained quotes for all the works that must prove I agreed.

 

He also sent bills from various tradesmen which I had already seen together with copies of all the contracts and accounts (which I had previously asked for but he had failed to send)

 

He attached copies of e mails I had sent claiming the clearly show I admitted being a guarantor...strange since I have never denied it. The only e mail he didnt attach was the one where I asked for 2 independent councillors to view the property and also requesting all documentation which he failed to send until now.

 

There are no new amounts or details...just a bundle of bills.

Has he complied with the Courts directions ?

 

Also sent loads of grainy black and white pics of what he claims is damage together with lots of high quality pics of the repairs...the contrast is amazing and its clear he is attempting to portray things in a bad light. Fortunately for me, I have a few pictures of some of the same things from the same angle in colour which clearly show that its rising damp etc and other neglect rather than physical damage to property.

 

On a different note, he also attached a statement denying his claims for charges were excessive as they formed part of his contract and attached a schedule of fees and statement of account. Nice that since I had missed a few and note he has claimed nearly 400 pounds in letter fees and late charges.

 

My question really is...has he complied with directions ? Where do I go from here.....do I contend that he has not as I still don't think he has paticularised his claim unless the individual bills amount to that....also no amount claimed in this new bundle, just the copies of bills.

[caro]

The directions:-

 

By 4pm on 22 July 2015 Claimant will send to the Court and to the Defendant an amended claim with specific detailed and particularised details of the dates and amounts claimed and legal basis for the claim to comply with CPR 16.4 and in default the claim is struck out.

 

CPR 16.4:-

 

16.4

 

(1) Particulars of claim must include –

 

(a) a concise statement of the facts on which the claimant relies;

 

(b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);

 

© if the claimant is seeking aggravated damages(GL) or exemplary damages(GL), a statement to that effect and his grounds for claiming them;

 

(d) if the claimant is seeking provisional damages, a statement to that effect and his grounds for claiming them; and

 

(e) such other matters as may be set out in a practice direction.

 

(2) If the claimant is seeking interest he must –

 

(a) state whether he is doing so –

 

(i) under the terms of a contract;

 

(ii) under an enactment and if so which; or

 

(iii) on some other basis and if so what that basis is; and

 

(b) if the claim is for a specified amount of money, state –

 

(i) the percentage rate at which interest is claimed;

 

(ii) the date from which it is claimed;

 

(iii) the date to which it is calculated, which must not be later than the date on which the claim form is issued;

 

(iv) the total amount of interest claimed to the date of calculation; and

 

(v) the daily rate at which interest accrues after that date.

 

(Part 22 requires particulars of claim to be verified by a statement of truth)

[caro]

If he hasn't complied with CPR 16.4 I suggest it's game over.

 

 

Incidentally, did the order allow you to put in a new defence for an amended POC?

[Belaflat]

Hi Caro.

 

The order was exactly as typed apart from a 2nd paragraph which stated

 

" This order is made by the Court of its own initiative without hearing the parties ir giving them an opportunity to make representations. Any party affected by this order may apply to have it set aside, varied or stayed within 7 days of service upon them of this order."

 

No mention of me putting in an amended defence.

[caro]

Did the paperwork come direct from the court or the claimant?

 

 

Either way I suggest that you phone the court and ask what happens next, but if there's no new POC then it should be struck out. If the court accept this as a new POC, which from what you say, seems unlikely to me, then you must surely be given the opportunity to defend it so I'd expect further direction from the court, or maybe even a directions hearing to decide whether to accept the new submissions and how to proceed.

[Belaflat]

The bundle was sent from the Claimant to me.

Meant to add, he included clauses of his contract which he said he BELIEVED entitled him to claim for items such as future lost rent etc

[caro]

The bundle was sent from the Claimant to me.

Meant to add, he included clauses of his contract which he said he BELIEVED entitled him to claim for items such as future lost rent etc

 

 

Then ring the court as per my edited post 96 above.

[steampowered]

If he hasn't complied with the previous order, ask the court to grant an order formally striking out the claim.

[mariner51]

Why would claimant want claim struck out (not decided?