Tenancy Guarantor issued with County Court Claim***Claim Dismissed***

[edmurph13]

Ok Andy will get POC on as soon as I possibly can but might not be until 10 or 11 tonight.

Ed

[AndyOrch]

No problem.

[edmurph13]

Hi Andy here is the POC verbatim minus names

 

Brief details of claim

 

The claim is under a written guarantee given by the Defendant jointly and severally for any liability of Mr X to the Claimant under the terms of a tenancy agreement dated 31st October 2014.

 

Particulars of Claim

 

1 The Claimant has at all times been a landlord to Mr X.

 

2 The Defendant has at all relevant times acted as a guarantor for Mr X.

 

3 The Defendant agreed to act as guarantor of the tenancy agreement between the Claimant and Mr X dated 31st October 2014. In doing so the Defendant agreed to be responsible to the Claimant for any loss, damage, costs or other expenses (including rent) arising out of the tenancy agreement. A copy of the tenancy agreement is attached at exhibit 'JMC1'.

 

4 Pursuant to the tenancy agreement Mr X was required to pay rent to the Claimant each month in the sum of £500.00.

 

5 In breach of the tenancy agreement, Mr X stopped making rent payments to the Claimant on the 1st March 2016.

 

6 Despite demands for payment Mr X failed to remedy his breach of the tenancy agreement and consequently the Claimant issued possession proceedings in the ..... County Court under Claim No ...... An order for possession was granted on 25th July 2016. I have marked and exhibited 'JMC2' a copy of the possession order.

 

7 In addition to obtaining a possession order the Claimant was awarded a monetary judgment against Mr X in the sum of £2,951.75 for the rent arrears (inclusive of costs).

 

8 Mr X was also ordered to pay a charge for occupation of the property of £16.44 per day from 1st August 2016 up until the property was vacated on the 3rd November 2016. The total charge for this period is £1,561.80.

 

9 Furthermore as a result of Mr X's refusal to vacate the property in accordance with the terms of the possession order, the Claimant was required to instruct a bailiff to enforce the eviction at a cost of £121.00

 

10 Mr X has paid £250.00 towards the judgement debt and therefore £4,384.55 remains outstanding.

 

11 As a result of the matter set above the Claimant has suffered loss and damage.

 

Particulars of loss

 

1 Rent for period 1st March 2016 to 31st July 2016 £2,500.00

 

2 Court costs £451.75

 

3 Charge for occupation as per paragraph 8 above £1,561.80

 

4 Bailiff fee as per paragraph 9 above £121.00

 

5 Less payment received as per paragraph 10 above - £250.00

 

£4,384.55

 

12 Further, the Claimant is entitled to and claims interest under Section 69 of the County Courts Act 1984 on the sum of £4,412.19 at a rate of 8% per year from 25th July 2016 amounting to £183.75 on the 17th January 2017 and continuing to accrue until judgement or earlier payment at a daily rate of £0.97.

 

AND the Claimant claims:

 

1 Damages

 

2 Interest under Section 69 of the County Court's Act 1984 to be assessed

 

3 Costs

 

Statement of truth

 

I believe the facts stated within these Particulars of Claim are true.

 

I am duly authorised to sign these Particulars of Claim on behalf of the Claimant

 

Sols signature

 

Dated 17th Day of January 2017

[AndyOrch]

Thanks ed will get this finalised mid day tomorrow for you.

 

Andy

[AndyOrch]

Just one point in case your not around in the morning ..... has the Tenancy changed in any way, for example if the rent has increased during your AST guarantee, then that will cancel the guarantee. As the tenancy will be different from the one the guarantor agreed to guarantee.?

[edmurph13]

Hi Andy - no the rent did not change during the AST.

The AST only lasted for 6 months from 31/10/14 to 30/04/15.

The AST I received with POC did not even have my name on it, however, the one I have recently received from claimants sols now miraculously has my name printed on it on page 5 under guarantor.

In my CPR 31.14 I asked for a written guarantee agreement which has not been provided to me as I believe that one does not exist.

Cheers

Ed

[AndyOrch]

Defence

 

The Particulars of Claim are summary in nature. Accordingly, this Defence is summary in nature and the Defendant reserves the right to amend this Statement of Case in due course.

 

1.I the defendant admit that I did act as guarantor for tenant Mr x, insofar that this was only for the period defined in the Assured Short hold Tenancy Agreement from 31 October 2014 to 30 April 2015.

 

2.There is no signed documentary evidence that I stood as guarantor for any period after the said 30 April 2015.I was never approached or requested by either the LL or the Tenant to sign a further guarantor extending the AST further beyond the specified period outlined at 1.The terms and Conditions of the tenancy agreement are not signed by myself in agreement.

 

3.The Assured Short hold Tenancy Agreement which was with the particulars of the claim did not have my name on Page 5 under para 1.12 THE GUARANTOR (if any): BLANK.

 

4.Therefore any claim made by the claimant and his solicitor for debt incurred by the tenant for a period of time not covered by these dates is not the responsibility of the guarantor and therefore points 2 to 12 of the claimants particulars are denied.

 

5.The claimants claim for loss of rent is denied for the above aforesaid reasons and to which should be amply covered by his own insurance.

 

6.The claimants claim for damages is denied pursuant to CPR 16.4 PD 9© and (d) having failed to provide a statement to that effect and his grounds for claiming them.

 

7.The claimants claim for interest under section 69 is denied pursuant to CPR 16.4 PD 2 a 1/2/3 having failed to specify under what basis any interest is due.

 

8.For the reasons set out above, the Claimant's claim Is denied In Its entirety.

 

 

 

STATEMENT OF TRUTH ( if submitting manually and not through MCOL)

 

I believe that the facts stated above are true.

 

Name: xxxx

Date: xx May 2015

[king12345]

I'm following this thread and trying to find why a guarantor is not liable after the fixed term of tenancy despite explicitly saying in the guarantor agreement that he will be liable as long as the tenants remains in the property, even beyond the fixed term.

[edmurph13]

I have received the form N149A Notice of proposed allocation to the Small Claims Track along with a form for Small Claims Mediation Service and N180 Directions Questionnaire. First of I don't think that mediation is the way to go as claimant and his sols seem hell bent on taking me to court, so do I not need to fill in that particular form? Also do I need to give them my telephone numbers on the directions questionnaire? The directions questionnaire also asks if I agree that the small claims track is the appropriate track for this case - I'm assuming I say yes to that question. I don't have any experts to give evidence. Would it be appropriate for me to contact the tenant as a witness or not? Is there anything else I need to do at this stage.

 

Thanks

Ed

[AndyOrch]

The court expects all parties to participate in mediation (ADR) irrespective of whether anything can be achieved.

 

If you wish to call your tenant to give evidence is your choice..if you do then on the DQ state 2 witness...he will be required to submit a witness statement to the facts.

 

Andy

[edmurph13]

Hi the mediation telephone appointment has been set at 9.00am this Friday 05th.

 

I need to some help in what to say at this mediation meeting as my defence is still that I was not guarantor after the 30th April 2015 and the info that came from the mediation service states

 

1. You must participate in mediation in good faith, with the intent to reach an agreement. If you attend with no intention of negotiating or compromising, the mediator will terminate the session. You must be prepared and willing to put your points forward, and to listen to the points raised by the other party.

 

I am willing to listen to the points raised by the other party but due to my defence I cannot see how I can come to an agreement if this means that I am willing to pay the debt that I don't believe I owe.

 

Other background info - I am self employed and my business is not working (haven't had a paying job since May 2015) and I have had to sign on JSA from last Friday as I have no other income and my debts are spiralling out of control.

 

Thanks for any help given.

 

Ed

[AndyOrch]

Just stick to your defence...unless they can prove otherwise allow them to discontinue the claim.

[dondada]

Hello everyone,

 

I hope I'm not hijacking the thread, apologies if that is what I'm doing.

 

I'm just curious; the OP said in his first letter to the sol he admitted being the guarantor

 

Really, he can't change his mind though, can he?

[AndyOrch]

Hello everyone,

 

I hope I'm not hijacking the thread, apologies if that is what I'm doing.

 

I'm just curious; the OP said in his first letter to the sol he admitted being the guarantor

 

Really, he can't change his mind though, can he?

 

Not at all dondada...post 36 above.....

 

" I need to some help in what to say at this Mediation meeting as my defence is still that I was not guarantor after the 30th April 2015 and the info that came from the mediation service states "

 

Regards

 

Andy

[edmurph13]

Hi Andy if I just stick to my defence then won't the mediator just terminate the mediation session?

 

Thanks

Ed

[AndyOrch]

Hi Andy if I just stick to my defence then won't the mediator just terminate the mediation session?

 

Thanks

Ed

 

Possibly...but thats what you want in reality as you have nothing to mediate over ?

[edmurph13]

Hi I have now received the N157 Notice of Allocation to the Small Claims Track (Hearing) at my local County Court to be held on 10 August.

 

It is going on about Mediation but this has already taken place, is this just a standard part of the N157?

 

What is my next step? complete my witness statement and get the other witness ( the tenant ) to complete his and get them sent to the court and the claimants solicitor within 14 days of the hearing.

 

Also it is stating that the hearing will take 4 hours is this a normal amount of time for a case like this ?

 

I have no idea where to start with how to compile my witness statement and any help would be appreciated.

 

If at the court hearing the judge rules in favour of the claimant can the judge impose a CCJ against my jointly held property there and then ?

If so if this CCJ is then paid in full can it then be wiped out on my/ my partners credit file?

 

I have attached the N157 under COURT HEARING.compressed.pdf

 

Thanks

Ed

COURT HEARING.compressed.pdf

[AndyOrch]

Is the hearing date a long way off the date for the claimant to pay the hearing fee ? (you have blanked out the hearing date).

 

Andy

[edmurph13]

Hi Andy the hearing date is the 10th of August 2017 - sorry got carried away with blanking stuff out !!!

Ed

[AndyOrch]

No problem...well I wouldn't do anything until you can check if the claimant has paid the hearing fee (21st June)...this will be the signal if they wish to proceed.

[edmurph13]

Cheers Andy

Ed

[edmurph13]

I phoned the court on 23 June and was advised the date on the attached court letter is incorrect and that the claimant had until the 13 July to pay. I phoned the court on the 14th and they said to call back on 17th.

When I rang them back they said that he hadn't paid the hearing fee and it was being sent over to be struck out. I hadn't heard anything from the court so phoned them yesterday and they said that it had been struck out on the 17th but that the claimant had written in wanting to reinstate and pay hearing fee. The case papers went to the judge yesterday and his decision was that the claimant needs to make an application and pay the hearing fee, claimants excuse was he paid the hearing fee to the wrong court. The person I spoke to at the court said that the original hearing date of 10/08/17 could still go ahead and that I needed to get my witness statement in to the court and the claimants solicitor by 4pm on 27/07/17.

 

Could I please have some help in completing my witness statement as don't know where to start and the timescale to get it in is now very short.

 

Also both me and my wife are concerned if at the court hearing the judge rules in favour of the claimant can the judge impose a CCJ against my jointly held property there and then ?

If so if this CCJ is then paid in full can it then be wiped out on my/ my partners credit file?

 

I have been claiming JSA since 19/05/17 and looking for work as my photography business has not panned out and am falling deeper and deeper into debt.

 

Thanks for any help it will be greatly appreciated

Ed

[AndyOrch]

But you have known since June ed and now left it 2 days before ?

[edmurph13]

Hi Andy thanks for your quick reply. You advised me on 9th June to wait to see if he paid the hearing fee before completing my witness statement. I have been in contact with the court since 23rd June to check if he had paid it and up until yesterday he had not and indeed it was struck out on 17 July, but he has since written in a letter stating he wanted to reinstate the claim and pay the hearing fee, as he said he had paid it to the wrong court and the judge has advised that he needs to make an application and pay the hearing fee this is why it is such a short timescale to get the witness statement in. Hope you can help me. I have a hospital appointment with my mother in law in Chester and need to leave now and won't be back until around 3.30 today.

 

Thanks

Ed

[AndyOrch]

" the original hearing date of 10/08/17 could still go ahead and that I needed to get my witness statement in to the court and the claimants solicitor by 4pm on 27/07/17."

 

It could but should be reassigned in all honesty..nether the less lets see what we can do..see to your mother in law first.