Cyril Freeman ltd/Spalter Fisher Ground Rent £3500 CCJ for £450 Ground Rent debt - help to set aside please

[Jp3333]

Hi All, 

I have been living abroad for 10 years

 

I had a call off my mom to say I owed £3,500 to a freeholder at an apartment I still own.

The freeholder had contacted HSBC and asked them to add to the mortgage!

 

I wrote to the freeholder and the solicitor to ask what this was.

I Didnt get an invoice and completely forgot to transfer funds so my previous 3 years £90 per year ground rent had escalated.  

 

I received an email from the freeholder saying to deal with the solicitor

then an email from the solicitor asking for £3,500

sending me a CCJ for £1600  (ground rent £500, admin fees £450 and solicitor and court fees £650)

this was addressed to a very old address 

I said that I would be disputing immediately.

 

The solicitor had also “served” a section 146 and added another £400 sent to my very old address

he also sent me a proposed court paper (not lodged) for £1500 for a forfeiture order.

All correspondence written within exactly the dates that he had to (in law I guess).  

Bearing in mind this is the first I had heard of this he told me I would have to pay or risk forfeiture of my flat.

 

I phoned the court and told them I hadn’t received anything and this was an incorrect address.

They said I could apply to have a set aside which I did immediately writing the following witness statement:

 

 “I am XXX and I am the Defendant in this matter.
This my supporting Statement in support of my application dated 11/07/2019 to:
· Set aside the Judgement dated 15/05/2019 as it was not properly served at my current address;

· Order for the original claim to be dismissed.

 

1. Judgement
1.1. I understand that the claimant obtained a Judgement against me as the Defendant in 15th May 2019. However, this claim form has not been served at my current address and I thus was not aware of the Judgement until 06 July 2019 when I received a letter from HSBC Bank plc. I understand that this Claim was served at an OLD ADDRESS (X). However, I moved to a new address in February 2016. I provided the claimant my updated details of X and an email address [email protected] in February 2016.

1.2. I have also never received any previous documentation from the claimant in this matter and I thus was never able to challenge the Claimant’s claim or defend myself.

1.3. On the 06/07/2019 I contacted the claimant and the claimants solicitors X X LLC to find out details of the Judgement. On 08/07/2019 the claimants solicitor emailed me the court papers containing limited details of the alleged debt, with no evidence of due process being followed such as chasing letters addressed to me at my current address.

1.4. On 08/07/2019 I again provided the claimant with up to date contact details with the address I had previously provided and an email address of Xx

1.5. On the 08/07/2019 I contacted the claimant to let them know that I would be disputing the judgement and seek that the claim be set aside as I had not had the chance to defend myself.

1.6. On the 10/07/2019 I contacted Northampton County Court Business Centre to find out details of the Default Judgement.

The court papers again contain limited details of the alleged debt and only a statement of ground rent and administration/legal fees.

1.7. I believe the claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the my correct contact details.

The claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

1.8. On the basis provided above I would suggest that the claimant did not fulfil their duty to use the defendant’s current address when bringing the claim.

1.9. Considering the above I was unable to defend this claim.

I thus believe that the Judgement against me was issued incorrectly and thus should be set aside.

Statement of Truth:
I believe that the facts stated in this Witness Statement are true.”

 

After this I sent them a letter that I had provided to the freeholder with new address and reconfirmed my phone call.  

I realised that I had to tick a box on my N244 form to have a hearing by telephone

so I filled out a new form and gave some further evidence to “support” my case

I had a look at my bank statements and see that I made a payment for ground rent and wrote again to the court;

 

“Further to the witness statement provided in my request to the court for my judgment to be SET ASIDE,

due to the claimant not following due process and sending notices to my current address.

 

I would also like to present to the court further evidence in support of my application being set aside. 

I have furnished the claimant's solicitor with this evidence as follows:

 

I would like to submit a letter from the defendant to the claimant in February 2016 made after a phone call to the claimant to confirm a change of address.

 

Upon further investigation of the defendant's financial records, it transpires the claimant's claim value appears to be incorrect.

I would like to submit to the court evidence of my ground rent being paid on 29th March 2016 (Page 1 value highlighted in yellow).

The claim states "defendant has failed to pay ground rent (25.3.16-24.3.20)" this is not valid and should further confirm my case to have the claim set aside. 

 

Please find over leaf the previously provided witness statement, letter sent to the claimant described above and evidence of ground rent payment being made from my bank account described above.”

 

 I have asked him for details of charges etc and he is maintaining he’s served to old addresses and it’s my issue.

He emailed me to say his client would consider

:  Entirely without prejudice to my client's position, if you have a proposal you wish to make I would suggest that you put it forward immediately to avoid the possibility of further costs being incurred.`

 

Sorry for the long post and I would like to know what anyone thinks is my best course of action,

is it to progress down the court route (potentially more costs!)

or try to negotiate with the solicitor?

 

Cheers JP

Edited July 29, 2019 by dx100uk
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[dx100uk]

if you have proof you informed the named claimant of your correct address then go for the set aside part PURELY on those grounds.

as for a brief defence of the actual claim, simply state the figure claimed is incorrect and vastly inflated

 

but you need to read your deeds etc CAREFULLY some allow these costs others do not.

 

if you want to propose settling for just what you owe on the missed ground rent to date [£90Pyrs ??] then do so. 

 

 

[dx100uk]

oh and name names we can guess I bet.

[Jp3333]

Thanks dx100uk I appreciate you responding. The ground rent is now 150 per year (need to check lease as this looks to have jumped up majorly) x 3 so 450. 

 

They are claiming in accordance with:

 

“ The service charges regulations 2007 and sections 47 of the landlord and tenant 1985 and section 166 of the common hold and leasehold reform act 2002.”

 

Trust Property Management Group is administering on behalf of Cyril Freeman limited. The solicitors are Spalter Fisher. 

 

They obviously try to speed things up and possibly well seasoned in this type of action. Definitely heavy handed with bringing actions !!! 

 

 

 

 

[dx100uk]

ok well don't assume those do apply

you need to check your lease/freehold etc etc very carefully/

 

have you acknowledged the claim yet?

 

[Jp3333]

Hi dx100uk 

 

I have told the solicitor that I’m disputing the claim and lodged my N244, Im due in court next week to ask to get the judgement set aside. I’m trying to get the case adjourned as I’m not in UK. 

 

So acknowledged as I’m trying to get it set aside so that I can challenge the cost!

 

Ive asked my bank for the lease agreement as I don’t have a copy and will have to check this out in detail as you say. 

 

Feels like the legal fees are completely disproportionate to the cost of the ground rent! 

[ericsbrother]

send all of your evidence available 14 days before the hearing to the court and the other party so you can go for the hearing at the same time. if you dotn they will try to get the claim through on your lack of defence to the original claim so chuck in the kitchen sink if necessary.

 

If the bills werent correcty served then you dotn owe the money at the time and they cant add a penny in fees. However living abroad will complicate things as how do you prove they werent served in time unless they state they sent them to the wrong address and caim that was service.

[Jp3333]

Cheers ericsbrother! 

 

I have a uk address (moms) so would have known that the letters were received!

 

I’ve sent the i information to them and they keep asking for more now!!!

[ericsbrother]

so it begs the question what address did they serve the paperwork on?  What did you specifically give the LL for the ground rent etc? the default address would be the flat itself but show you gave another address and they will have lost the claim and have to pay your expenses and that will put the off a rematch.

 

so dig out your lease and see what it says about ground rent, what it says about landlords costs etc, if there isnt a specific clause that allows them to claim their costs properly incurred then they cant even if you were in the wrong about the GR payment

 

you take everything you have to court as the judge wont really wnat to make more time to hear the same thing if it can be dealt with and you cna bet if you dont have the evidence they will pounce on you.

You should have made it availabe to the court and them a week ago normally

[Jp3333]

On 30/07/2019 at 05:09, Jp3333 said:

 

Thanks ericsbrother really appreciate the response.

 

I was due in court on Monday and just waiting to hear back on the adjournment as I need to do by phone....I am hoping to buy more time to get hold of my detailed lease agreement and check like you say,....

 

They have sent me a few letters and apparently they served these on the flat and another old address. I have provided them a letter to my moms place where I have been receiving post etc. Think that they have just not updated this for some reason.

 

The solicitor has gone quiet when I produced a bank statement with a payment made in a period that they said I was liable....all I want to do is pay my ground rent ! 

 

22 hours ago, ericsbrother said:

so it begs the question what address did they serve the paperwork on?  What did you specifically give the LL for the ground rent etc? the default address would be the flat itself but show you gave another address and they will have lost the claim and have to pay your expenses and that will put the off a rematch.

 

so dig out your lease and see what it says about ground rent, what it says about landlords costs etc, if there isnt a specific clause that allows them to claim their costs properly incurred then they cant even if you were in the wrong about the GR payment

 

you take everything you have to court as the judge wont really wnat to make more time to hear the same thing if it can be dealt with and you cna bet if you dont have the evidence they will pounce on you.

You should have made it availabe to the court and them a week ago normally

 

[Jp3333]

Case adjourned and now apparently it is going to take 45 minutes via video link!

 

I will order the lease now and get reading!

 

 

[ericsbrother]

so you also need proof that you told them to send GR demand to an address they didnt serve it on.

that will mena they havent properly made the request for payment and all of the charges they ahve invented can never apply.

there is law on this so you need to look it up in the leashold reform act or whateevr relevant legislation applies. You can ask SHELTER whaqt it is, they should know. You may well find it in ols thread on this forum as well, it has come up several times before.

Everything in writing so screen shot the thread as well as finding the law.  you will need to send copies of what you ahve to court and the opposition.  by the sounds of it you have them over a barrel but you will ahve to show the evidence, not just say it is so

[Jp3333]

Thanks for the advice ericsbrother. I’ve now located my lease (being sent to me) so will be able to see if what they charged is correct for the other fees. They’ve applied loads of admin and legal fees. The “outstanding” ground rent is far less than the charges and think that the section 146 may be invalid too as it’s also under £500 ground rent!

I managed to get a copy of my letter sent to them but didn’t send recorded delivery. I called them too but that’s obviously verbal so no recording. 

Do you think I should pay the outstanding ground rent (when I have checked my agreement) to the managing company to show good faith to the court?

I will contact shelter on Monday morning to get their opinion too.

Thanks a lot again!

[Jp3333]

Hi all, as i got the case adjourned i wondered if the claimants solicitor could charge me more?  They emailed me earlier;

 

Dear Mr x

 

I have just picked up a message on my voicemail from the County Court at x advising me that the hearing of your Application this morning has been adjourned at the last minute on the grounds that you are in Abroad. This is of course your Application and the Notice of Hearing was issued on 22 July. We have been in correspondence recently and you did not at any stage advised me that you may have to apply for an adjournment on this basis. Please provide full details of the evidence in support of your Application for the adjournment so that I may consider whether an Application for wasted costs against you is appropriate.

 

Is that right?? Thanks!

 

 

[AndyOrch]

Yes if you dont inform and get an agreement with the other party.

[Jp3333]

Thanks Andyorch

 

I asked the court and they said they would call him! 

 

[ericsbrother]

how much notice?

Now it is in the courts powers to adjourn a hearing so that is tough luck to all parties until such time as the whole matter is decided so an applicatrion for wasted costs menas nothing if they didnt actually attend on the day. When you win you can of course hammer them for your costs and that will include travel fro  Mongolia or wherever you are and it will be difficult for te to then explain to a judge as to why they shouldnt pay when they expect you to cough up if their wheeze was successful.

 

The email is standard tactics of trying to get you to drop the matter, they knew you were abroad.

However, yu pst stuff up and expect advice on it without telling us what is going on in the interim. Did you apply for the adjournment of just tell the court you were abroad, key difference.

[Jp3333]

Thanks for the advice ericsbrother. 

 

I applied for the set aside and was told it would likely be granted with no hearing.

 

Then when the court hearing date came through (around 24/7) I called the courts to ask if i could do the hearing by conference call as I was abroad and didn’t know when i was back.  And then was told to reapply for this by requesting an adjournment.

 

I didn’t say anything to solicitor  as the court  hadn’t granted this right up to the 11th hour.

 

So I applied for the adjournment.

 

thanks 

[Jp3333]

Hi All

 

Thank you for your advice so far. I have received my lease agreement and the ground rent they have charged for 3 of the years is correct at £150 per year and but there is a spurious amount that I don’t recognise for £42.24. I have been charged for administration charges £48 per year for 3 years and then £72 plus £120 x 2 so a lot of admin charges (£456).

 

my lease says:

 

Rental payments to be made a year in advance.

24.1 To pay the said rent on the days and in the manner in which the same is hereinbefore reserves and made payable without deduction.

24.2 To pay the charges and expenses (including any Value added tax) reasonably made and incurred by any agents employed by the freeholder in collecting the reserved rents in respect of the property and in accounting to the freeholder for them payment to be made at the time of each payment of rent or on a subsequent demand.

 

I am obviously saying I haven’t been served notices so I wondered if I am liable for the admin and solicitors fees as it doesn’t explicitly state in my lease? Obviously then the solicitor has added on a lot more after this point!

 

Any help or guidance appreciated ....

 

JP33

[ericsbrother]

you need to acquaint yourself with the law on this, the charges are enforceable ( though what reasonable is will be a moot point) but only if they served the demand properly and that is the bit you will have to be certain of as you are saying that it want received or sent to the wrong address. If it was not served properly then the law says they cnat charge you anything but nly the GR when the demand is then properly served (after screw up)

 

you should ahve been on top of this a month ago.

STU007  may well be able to quote chapter and verse

[Jp3333]

So after writing a complaint to the management company (Trust Property Management) they write back

 

Dear Mr X, I am the Managing Director’s assistant and have been passed your email below and letter attached in his absence.

 

He is away until the 27^th August and I shall bring your letter to his attention upon his return.

 

Meanwhile I attach our Complaints Handling Procedure (“CHP”) that explains how he will deal with your concerns.  Due to his annual leave the dates will slip a little.

 

In order that he has the full papers before him on his return, could I ask that let me have a copy of the letter you mention in your letter, i.e. that which advised us of your change of address in February 2016 as well as details of the monies paid in 2016 which you do not think have been reconciled on our system.

 

Finally, I should point out that Messrs Spalter Fisher are not “our” solicitors as you describe them but are those of your Landlords and any concerns which you may have over their actions should be directed to them and not ourselves.  We obviously are not responsible for the actions of third parties

 

Yours sincerely,

 

So now they are denying being responsible , although they have provided a lot of information to them at this point!

[ericsbrother]

so still no answer from you about the terms in the lease about expenses incurred by LL or his agents in chasing the GR. They cnat claim costs if they have got it wrong and they need to lease to say they can recover costs anyway of they have got it right

They are partially right, it is for the LL to go after you and also bear the cost of a failed action. If they are responsible for a foul up then LL can sue them for their negligence and that is nothing to do with you.

 

as for wasted time costs, they should ask the court and in the meanwhile you ignore them as it is a tactic uised to try and make you think that continuing to defend your corner will cost you more than just paying up.

[Jp3333]

Hi Ericsbrother,

 

There is a clause in the agreement and I have seen it a fair few times on other threads:

 

“32. To pay all costs charges and expenses (including legal costs and charges payable to a surveyor) which may be incurred by the freeholder in or in contemplation of any application to the freeholder for any consent pursuant to the covenants herein contained and of any steps or proceedings or the service of any notice under section 146 or 147 of the property law act 1925 including the reasonable costs charges and expenses aforesaid of and incidental to the inspection of the demised premises the drawing up of schedules of dilapidation and notices and any inspection to certain whether any notice has been complied with and such costs charges and expenses shall be paid whether or not any right  of re-entry of forfeiture has been waived by the Freeholder or avoided otherwise than by relief granted by the court”

And 

24.2 To pay the charges and expenses (including any Value added tax) reasonably made and incurred by any agents employed by the freeholder in collecting the reserved rents in respect of the property and in accounting to the freeholder for them payment to be made at the time of each payment of rent or on a subsequent demand.

 

Looking through the solicitors charges he refers to contemplating forfeiture on multiple occasions and each time seems to add around £400 each time.

 

I have made a complaint to the SRA in respect of the heavy handed approach and also to the Managing Agent asking for more information from their end. I have lodged a complaint with their MD who is on holiday.

 

Thanks

 

 

[ericsbrother]

so if they served the annual GR notice properly the they can demand the money. If they didnt then they cant ask for a penny. The nub of iot is did tey send the demand to the correct address given for the service of documents? They will say they did so you need some evidenec that you told them what address to write to that is different to the one they sent stuff to.

[Jp3333]

On 29/08/2019 at 22:55, ericsbrother said:

so if they served the annual GR notice properly the they can demand the money. If they didnt then they cant ask for a penny. The nub of iot is did tey send the demand to the correct address given for the service of documents? They will say they did so you need some evidenec that you told them what address to write to that is different to the one they sent stuff to.

Thanks ericsbrother. No they sent them to an old address.  I sent them a letter that had previously been sent to Trust property management with my new contact details on.

I have a court hearing for the set aside soon and hopefully they will see that I have tried to resolve matters quickly (within days) and have provided enough evidence. Trust after several weeks of asking haven’t provided me with any backing information, I have never received any paperwork just the CCJ.

I have done some research into Trust property management directors and the freeholder cyril freedman directors. They have directors current and ex that Are now or have previously been directors of both companies ..... Obviously a well rehearsed routine by them all.

 

Edited September 1, 2019 by Jp3333
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