Winderbray/JCF PM/PCB Lawers Claimform - Service charge arrears - Refused Payment Plan - Now N244 for SJ+Strike Out.

[1penny]

Ok many thanks, really appreciate your help. I will send today before I go to work and will advise my partner to send too.

1Penny

 

[AndyOrch]

I think your response to their paragraph 1 is a little sparse and allows the court to believe the claimants pleadings and that you are simply avoiding paying and by using the holding defence are simply complicating the claim.

Quote

Due to Covid (my partner lost his job) and the cost of living crisis we have been unable to pay in full. We were speaking to the managing agent and trying to pay as much as we could afford and explained our circumstances. I also lost a parent suddenly during covid and couldn't have a funeral. This is still hurting me now. The managing agent then appointed solicitors who again we tried to reach an affordable payment plan with but they refused. We still continued to make payments. We had almost reduced the arrears down to 50pct in the past year, which has been a struggle.

You could have included parts of the above to show the court that there is more to this claim than meets the eye. That the claimant has been unreasonable and by issuing the claims as a means to secure its investment /debt against the property mortgagee. 

I appreciate that you can expand on this if the claim proceeds but from the outset if your response had more detail/mitigation, it may discourage the claimant to review its position and possibly discontinue its claim.

Don't worry if you have already submitted the defence or do not have time to amend.

Lolerz ?

Andy

 

[1penny]

Hello Andyorch

Many thanks for your response. I was just in the process of submitting the defence but haven't done so yet.

How would you suggest that I reword the response to their paragraph 1.

I really appreaciate the help. I am feeling so anxious.

1Penny

[lolerz]

You could mention that a reasonable and costed payment plan was refused but I would add that as a separate paragraph.

It might also go against querying whether the charges are lawful as you've already made payment. This removes any protection you have under Section 27A of the Landlord and Tennant Act 1985. Also offering a payment plan for the rest may admit to the charges being due and payable (we don't know this until we see the Section 20 notices for the major works).

I've been trying to position this in a way that we get a Tomlin Order in mediation for the principle amount (not their interest or costs) at an affordable level (around that £400/month you offered) and then suggest you get a payment plan going with the managing agent directly for the current Service Charge.

Problem there is that if they haven't done Section 20 correctly, you could be paying thousands of pounds you don't legally owe. Which is why we're questioning it in the defence. I was actually shocked that the solicitor came back and said "we're not providing this because you've already had it." and it threw up red flags in my eyes.

If you do want to add re the payment plan, I would go along with:

"The defendant tried to agree to a costed Payment plan, to clear the arrears and cover the current Service Charge, with both the claimant and their solicitors on *insert dates*, which was denied."

See if @Andyorch is happy with that Paragraph and if so add it between Paragraph 2 and 3.

[AndyOrch]

On 03/03/2024 at 18:11, 1penny said:

1. The defendants owe the claimants the sum of £12,630 for arrears of service charge part of which has been outstanding and demanded since 1st April 2019 pursuant to a lease dated 4th September 1998.

The Defendant contends that the particulars of claim are extremely vague and generic in nature.

The Defendant accordingly sets out its case below and relies on CPR 16.5 (3) in relation to any particular allegation to which a specific response has not been made.


1. The claimant has not complied with paragraph 3 of the PAPDC (Pre Action protocol) and failed to serve a letter of claim pre-claim pursuant to PAPDC changes of the 1st October 2017. It Is respectfully requested that the court take this into consideration pursuant to 7.1 PAPDC.

2.  Paragraph 1 is noted. The defendant is the leaseholder for *insert property address*

2. Paragraph 1 is noted. The defendant/s are the leaseholders of xxxxxxxx. It denied that the alleged amount claimed is simply down to arrears and none payment. Having dealt with the Managing agents in trying to resolve this matter and arrange an affordable payment plan to which they refused. The managing agent then appointed solicitors who again we tried to reach an affordable payment plan with but they refused. Not withstanding the above and with no admittance of liability we still continued to make payments and almost reduced the arrears down to 50% in the past year.

[1penny]

Hello Lolerz

Many thanks. So it sounds like we might be better to keep the defence as is ?

Is it interesting that the solicitor will not provide a copy of the lease as part of the CPR31:14 ?

1Penny

[AndyOrch]

Thanks Lolerz

I am just concerned this claim will be Fast Track and the claimants will no doubt milk the costs. I see your points re the technical legislative points which can be expanded on further into the process

But from a judges perspective its a matter of getting his interest and not him simply viewing as a debtor or avoidance. 

[1penny]

Hello Andyorch

Many thanks also.Sry our responses crossed.

The amount in the POC of the claim form is also wrong as the solicitors failed to include the last payment made.But I guess we use this later during the process ?

 

[AndyOrch]

Yes but you should add a line re sec69 interest is incorrect and be denied.

[AndyOrch]

So to save us referring back this is what we have so far...

 

1. The defendants owe the claimants the sum of £12,630 for arrears of service charge part of which has been outstanding and demanded since 1st April 2019 pursuant to a lease dated 4th September 1998.

2.The claimants claim interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from 1st April 2019 to 14th February 2024 on the said sum the interest being £1,009

and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £2.77.

The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 01/04/2019 to 14/02/2024 on £13,632

and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £2.77

What is the total value of the claim? £14,414

Proposed Defence

The Defendant contends that the particulars of claim are extremely vague and generic and misleading in nature.

The Defendant accordingly sets out its case below and relies on CPR 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

1. The claimant has not complied with paragraph 3 of the PAPDC (Pre Action protocol) and failed to serve a letter of claim pre-claim pursuant to PAPDC changes of the 1st October 2017. It Is respectfully requested that the court take this into consideration pursuant to 7.1 PAPDC.

2.Paragraph 1 is noted. The defendant/s are the leaseholders of xxxxxxxx. It denied that the alleged amount claimed is simply down to arrears and none payment. Having dealt with the Managing agents in trying to resolve this matter and arrange an affordable payment plan to which they refused. The managing agent appointed solicitors who again we tried to reach an affordable payment plan with but they refused. Not withstanding the above and with no admittance of liability we still continued to make payments and almost reduced the arrears down to 50% in the past year. 

3. The claimants claim for section 69 interest be denied as its incorrectly calculated and duplicated.

4. The Defendant upon receipt of the Claim Form sent the Claimants Solicitor a CPR 31:14 request on 28th February 2024. To date, the claimant has failed to fulfil this request.

5. Therefore the claimant is put to strict proof to :

(a) show how the Claimant has reached the amount claimed for; and

(b) That the money for major works was legally demanded by way of Section 20 Notices as per the Landlord and Tenant Act 1985; and

(c) that Service Charge demands were correctly issued according to the terms of the lease and Section 21(B) of the Landlord and Tenant Act 1985.

6. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

7. The Claim is denied.  It is denied that the Claimant is entitled to the relief claimed.

 

 

.

[lolerz]

I'd say we're getting there

[AndyOrch]

Feel free to tweak it further Lolerz but I think it now covers the main points and may give the claimant something to consider before continuing ?

Do they want a can of worms opening ?

[lolerz]

I think it's ready to send personally.

 

I don't think the judge will look too kindly on them refusing a payment plan then taking them to court, as well as double charging interest and forgetting PAPLOC on such a large value claim.

[AndyOrch]

Precisely that was the point I wished to convey and get across. 

[1penny]

Hello Andyorch / Lolerz

I cannot thank you both enough for your time, effort and support so far. When I can I will be making a donation to this site.

The revised defence reads well and I better understand the angle that is being aimed.

Regarding the coming years service charge all residents of the block are meeting to discuss further as we are all unhappy with the continued high cost and lack of service provided.Hopefully we will come up with a plan as suggestions have already been made.

I think service charges for leaseholders are making the headlines a lot in the news recently.

I will arrange for both of us to proceed and submit the defence and will fill any missing gaps.

Thanks 

1Penny

[AndyOrch]

[1penny]

Please could I check this point

b) That the money for major works was legally demanded by way of Section 20 Notices as per the Landlord and Tenant Act 1985; 

should this be as per the Commonhold And Leashold Reform act 2002 ?

 

[lolerz]

 Section 20 of the Landlord and Tenant Act 1985 (amended by section 151 of the Commonhold and Leasehold Reform Act 2002).

Just name Landlord and Tenant Act 1985 as that's what we're actually querying. Whether the consultation in regards to qualifying works took place.

[1penny]

Many thanks, just wanted to check.

Preparing to send this afternoon.

..............

Defence has been successfully submitted by both of us.

I guess now a waiting game.

Hopefully we can find a middle ground amicably and reach agreement.

We have already demonstrated our willingness, despite various threats via e-mail last year including forfeiture of the lease.

Thanks for the help so far and will keep you updated.

Have a nice weekend

1Penny

[lolerz]

They can't forfeit the lease as they've accepted payments.

Amazing how many freeholders/managing agents make that mistake (for them, good for you).

 

[1penny]

Today we have both received from Northampton a Notice of Proposed Allocation to the Fast Track.

Attached to it is a form N181 Directions questionnaire.

Is this for us to complete ?

 

1Penny

[AndyOrch]

Yes take a read of the following

 

[1penny]

Many thanks, I will take a read.

So this means that the claimant wishes to proceed ?

Deadline is 18th April 2024.

[AndyOrch]

To a degree but failure to proceed would result in the claim being stayed.A few more hurdles yet before it reaches allocation.

Ask if you are unsure of anything on the n181

 

[1penny]

Ok many thanks.

We will have a read over the next few days and look to fill it in over the weekend.

Will probably need some assistance but will look at examples on here.

Many thanks

1Penny