Guarantor and possible court action...help needed.

[caro]

Why would claimant want claim struck out (not decided?

 

I'm sure he wouldn't but the OP is the defendant.

[Belaflat]

Will try and ring today...have been working all night so will have to set alarm to catch the office. According to the web site it's only open 10 til 2.

[Belaflat]

Have just called the Court and asked about my case.

 

The person I spoke to asked me to drop them a quick e mail expressing my concerns and she would hand it to the District Judge as he now had the files for consideration today.

 

Caught on the hop a bit as I am still very tired and the time available was limited but I have fired off a quick message expressing my concerns about the claim as I am still confused by his rambling bundle. I stated I did not believe he had complied with the order as I would still not be able to defend the case on a point by point basis due to insufficient details.

 

Just have to wait and see what happens next.

[Belaflat]

Have just received latest Court Order.

 

It reads as follows.

 

The Court noting that the Tenancy Agreement was in the name of XXXXXXX Property Services

 

IT IS ORDERED THAT

 

1. The Claimants name be amended to Mr XYZ t/as XXXXXXX Property Services.

 

2. The Claimant will confirm what,if any of the amount claimed has been submitted as part of the form returns to HMRC by his accountant by the next hearing.

 

3. The defendant shall submit a fully particularised defence by 4pm on 17 August 2015.

 

4.Either party may apply to have this order set aside, varied or stayed, but such an application must be made within seven days of receipt of the order by the party so applying.

 

Since his bundle of papers and bills tally up to more than he is claiming this is going to be a tricky one.

Do I counter every bill he has sent ?

Any help appreciated.

 

Thank you.

[steampowered]

It sounds like he has submitted a revised particulars of claim, and that you have now been given the opportunity to submit a revised defence to that. You should contact the court to get a copy of the revised particulars.

 

I do not think it is a good idea to approach this by going through each bill individually and countering it. In fact bills would not normally be disclosed to you at this stage. The purpose of the particulars of claim is to set out what is being claimed for; exchange of the evidence in support of that claim (such as bills and invoices) would normally come much later, after the particulars of claim and defence have been filed.

 

If you focus on each individual bill you run the risk of losing sight of the wood for the trees. I think it is better to think conceptually about whether you are liable for the different types of loss he is claiming, before you start thinking about the amounts written on invoice. At some point you will need to consider each individual bill is valid but don't drown in detail.

[Belaflat]

He sent to me the same documents he sent to the court (see previous court order) which consisted of a statement from him together with a series of invoices and a load of photographs.

The statement alleges I agreed for him to do all the work and send me the bill which is just ridiculous. He claims I said this on the final inspection...he wasn't even there.

He has included all e mails sent which don't worry me as there are lots of things I asked for which he didnt do or respond to and therefore shows him in an un co-operative light.

He backs up his right to charge for these items which include future rent by a clause in his contract allowing for charges to be made.

This is everything I have. No additional fee breakdown or otherwise, no moneys claimed in this second bundle which is why I am a bit puzzled by it all.

[steampowered]

It sounds like the documents he submitted have now been accepted. I am sure they are not compliant with court requirements and are not very clear, but litigants in person are given a bit of leeway to get things wrong. You now need to submit a revised defence as per the court order.

 

The fact that you have been asked for a 'fully particularised' defence suggests that, possibly, the judge found your original defence a bit unclear. We can help you with that if you want to post up a draft.

 

You can point out the lack of a fee breakdown in your defence. However it should not be the centrepoint of your defence. It is important to be clear about why you are contesting liability, rather than just contesting the size of the amount claimed. In a lawyer's mind the issue of (1) whether you are liable for a particular type of loss and (2) how much you should pay for that loss, are treated separately.

[Belaflat]

Thanks steampowered. I will set to work on it.

My original defence was vague as all he claimed was a sum of money due for repairs and lost rent as I was a guarantor and that was basically it.

I stated his POC were vague and that's why he was ordered to resubmit his claim. Its still not much clearer although since he has now basically revealed everything he has got by sending all documents, photos, e mails etc in relation to the tenancy it gives me a better idea where to aim my defence.

 

Bit concerned about separating liability for loss from amount of loss though. If I am found liable for a particular loss for example yet the claimed cost is greatly exaggerated, how could I convey that. The inflated costs are part and parcel of my contention that he is merely treating Guarantors as cash cows rather than claiming legitimate costs.

 

In every instance, the work carried out has exceeded what he alleged was required with other works being carried out and claimed for that were not even mentioned in his pre exit requirements letter.

 

A simple example of this which I can easily prove is his claim for fitting 2 smoke alarms. The fire brigade fitted these free when they inspected the house and found there were none in it. I have the e mail from the Officer who inspected and authorised the fitting together with the dates done. These were still in the house when it was vacated. The LL included a picture of the old one which was a broken shell which was in the house all along and was like that on commencement of tenancy. The Fire Safety Officer is willing to help further if required.

 

These are the type of things I need to show to prove the LL's claim is not credible and I can't do that if I merely deny the claim.

[madmatt101]

your defense is to deny liability,

 

Using the smoke alarms as an example,

you would deny you are liable for the replacement of them, as during the tenancy the Fire brigade fitted new smoke alarms, as there were no working smoke alarms in the property.

[Belaflat]

Update.

 

Have submitted defence denying liability together with photos I have which contradict his claims.

Also submitted the letter from Fire Safety Officer stating they inspected the property and fitted smoke alarms.

Hopefully little things like this will show him in a bad light.

 

I have a Court date of 14th October with 2 hours allowed for hearing.

The judge is apparently a bit of a consumer champion having made the papers when he found for motorists against private parking companies.

http://notomob.co.uk/discussions/index.php?topic=2793.0

Since he also ordered the LL to state if he had declared the costs of 'repairs' to HMRC I am hoping he is leaning towards my version of events as that tells me he is suspicious of some sort of [problem].

 

Just one other little bit which I have only just picked up on,if you look at post No 72 where I have attached the letter from the LL, if you look at the final paragraph of his extract from the contract it states I remain guarantor until the contract is legally ended. Since he gave notice to quit on the 21st Jan, can I argue that I am no longer guarantor as he has legally released me from the contract......long shot I know but the date is drawing close and I need to cover every angle.

 

Thanks.

[steampowered]

Since he gave notice to quit on the 21st Jan, can I argue that I am no longer guarantor as he has legally released me from the contract......long shot I know but the date is drawing close and I need to cover every angle

I don't think that is convincing, because a notice to quit does not terminate the contract. I think you are better off dumping this and focussing on the other stronger points which you have.

[Belaflat]

Did think it was a long shot.

The paperwork also mentioned any other submissions to the court must be made at least 3 days before the hearing. Does this mean the LL could spring something else on me which I will have had no time to refute ?

I have also located a couple more photos so was wondering if I could submit them as an addition to my current defence.

[ericsbrother]

Gte the photos in to court and copies to the LL. Take spares with you on the day as well. The idea of no new evidence after a cut-off date is to prevent one side ambushing the other. If you get anything sent to you late bring it to the judge's attention and complain that you havent had time to consider and respond and ask that the new bits be struck out or you will have to waste the court's time considering and responding to them.

[steampowered]

The purpose a Defence is to put forward your case. The evidence supporting it comes later and is not normally provided along with the defence. After the directions questionnaire, there would typically be an order requiring each party to disclose to the other the documents which they wish to rely on in court.

[Belaflat]

Had my day in Court today but not gone as hoped.

The LL had a lot of his claims dismissed and of those allowed the Judge cut them by 50% for wear and tear, He said it was betterment and would not allow it.

I faced a possible £3500 bill with costs but ended up with adjustments at £1550.

The LL lied through his teeth and some of his claims were ridiculous. I produced pics of rising damp and the Judge said it looked like rising damp, he replied he didnt know but it was possible a dog in the house had used that part of the wall to urinate on. There had never at any time been a dog in the house.

The judge then dismissed the pics of mould on the walls as due to poor ventilation. I pointed out the boiler had broken down and despite reporting it 3 times it was not fixed so leaving windows open in the winter was not feasible. LL said it was a new boiler and would have been easily fixed if reported....I must admit I got a bit uptight with some of his claims and was told to be quiet and let the LL speak.

I pointed out brochure pics from before daughter moved in clearly showing paper peeling off walls and his pics with repairs claimed for. I said it was existing damp and the LL waffled it away by saying it was the utility room so it was not of high importance. ???.....so why did he include it in his claim pack then. He was allowed £250 of a £700 claim for that.

Some things like the smoke alarm claims were thrown out with the LL producing pics of the old ones saying they were the shells of the new ones we had removed. Judge told him straight he did not believe him.

His claim for oven and hob was reduced from £450 to £105.

The most annoying thing was his claim for lost rent. Every solicitor I had spoken to had said this was not recoverable however the judge allowed him a portion.

 

Best part of the day however was winning my counter claim re his charges. Judge pointed out OFT had ruled £12.50 a reasonable charge. LL tried to justify it by saying he had to ring round and visit peoples houses. Judge said in the case of a tenant then that may be considered reasonable but in a simple guarantor letter it was not.

Judge also queried the £1 a day penalty charge which LL said he needed to charge as late payments interrupted cash flow. Judge said he was entitled to charge 5% Per Annum and singled out an arrears notice for £104 stating that he would be entitled to £5 for the year for that, not £1 per day. He ruled that charge illegal.

Judge then went through full statement of account provided and reimbursed me all the letter fees and penaltys plus interest.

LL looked like a boiled lobster about to explode.

That bit alone was the sweetener as it means others who have been stung by him can claim them back too potentially costing him far more in the long run.

 

I shall be using my experiences to help other people he is trying to sting by pointing out his tactics and making very public the judges ruling on his charges.

 

A costly day for me, not as bad as it could have been and I believe a moral victory overall. The LL was not happy at all with the overall outcome.

[AndyOrch]

Many thanks for the update Bela...you gave it a good run.

 

Regards

 

Andy

[Dotty50]

Good to hear the landlord didn't get away with it all!