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

[lolerz]

Just out of interest, did you continue to pay your normal Service Charge and Ground Rent (if not peppercorn) obligations during this?

[lolerz]

To confirm, the arrears aren't just the Additional Levy, but also regular Service Charge arrears?

Was it one piece of work that caused the additional levy, or multiple? Did they go through the proper Section 20 consultation process for these?

Did you try to agree a regular payment plan that covered *at least* the most recent Service Charge period?

The good thing here is that as it seems the managing agent has continued to accept your payments, they clearly don't deem you as in breach of lease. Which means that can't apply for a S146 order (normally the next step after a CCJ) for repossession of the property.

 

[lolerz]

Absolutely yes, the Solicitors should have sent the LBA by post. That's part of CPR rules.

Even it you accepted service by email, it should have been made clear beyond reasonable doubt that it was a Letter Before Action.

However, it's unlikely you'll get the claim thrown out for that.

I would recommend stopping payments now so that it doesn't disrupt your position in court as to whether the money is owed.

I would argue that while normally we wouldn't need to see the statements as part of the CPR 31.14 request you'll be making as part of your defence, we most likely would here as we'd need to see how the arrears are made up.

Ideally, we'd need a timescale of when the Section 20 process started, when the additional levy was demanded and when the works were completed.

Do you have a mortgage on the property?

[lolerz]

Ah, the mortgage explains why they're trying their luck in court.

I imagine the Freeholder's final move (remember, it's them suing you not the managing agent) is to apply for the Mortgage company to pay the arrears as part of the S146 process. It pretty much guarantees them their money.

Mortgage companies do this because they don't want to lose their security on their loan with you. This will get added to your mortgage but do be aware that some mortgage companies may look to start repossession proceedings of their own if they have to do this. If this happens, come back and we'll help you stop that as well.

For now though, we'll fight this. Hopefully you kept all the correspondence as it's important that funds are used correctly in Service Charges. It would be interesting to see if any shortfalls/surpluses were added to your Service Charge account throughout the years.

FWIW It's going to be difficult to argue the Service Charge isn't due and payable because I imagine it states that they are explicitly in your lease. A lot of people assume this means there's no defence though.  We're going to have to go at the angle that the Service Charge demanded wasn't reasonable and the fact that you've tried to engage in good faith to clear the arrears and they haven't accepted it. We can't formulate a defence until we see the documents though!

For now though, can you complete the template listed in this thread?

 

Edited February 19 by lolerz
missed out some

[lolerz]

Interesting that they've waited 5 years to try and claim as much interest as possible!

[lolerz]

If you feel like you've been ripped off you'd have to argue that through a First Tier Tribunal.

Obviously, that doesn't help now that it's going through the county court for non-payment.

[lolerz]

A copy of an up to date statement of account to see how the extra charges were raised would be great.

It'd also be great to know how much you were paying per month and how much your annual Service Charge is normally to ensure what you were paying covered your normal Service Charge

[lolerz]

Absolutely, yes.

You'll likely also get one as part of your CPR 31.14 request you'll send off as part of your defence

[lolerz]

yes

[lolerz]

Thread title updated.

 

 

[lolerz]

Thank you for this. Give me an hour or so for me to have a look.

Meanwhile, what did you propose as your normal payment plan?

[lolerz]

Looking at it I can understand why £200/month wasn't accepted as it's not enough to cover the most recent service charge period. Just for that you'd need to be paying roughly £250/month.

No reason for them not to accept £400/month though, especially if you were also going to make supplemental payments. That's going to be our argument as realistically that's all they're going to get from any court action anyway.

Finally, do you still have the emails from the solicitors before they issued the claim form? It'll be useful to see because I reckon we'll be able to argue our way out of the interest/legal fees they're claiming as they didn't follow the Pre-Action Protocol.

[lolerz]

Make sure you keep EVERYTHING from now on!

[lolerz]

Any update on this and uploading those documents?

Just time-conscious that you haven't yet filed an acknowledgment of service yet (Which needs to be done by Thursday at the latest!) else you'll get a judgement in default. Really important we stick to those dates

pop up on the MCOL website detailed on the claimform

.register as an individual on the Gov't Gateway Site
Go to HMRC's login page.

Click the GREEN sign in button.
Click “Create sign in details”
Enter your email address where asked.
You will now be emailed a confirmation code. ...

You will now be issued with a User ID for your government gateway account.
 note down your details inc the long gateway number given, you might need it later.

then log in to the MCOL Website

.Select Respond to a claim and select the start AOS box.

.then using the details required from the claimform

.defend all

leave jurisdiction unticked.

click through to the end

confirm and exit MCOL.

.get a CPR 31:14 request running to the solicitors

 

Remove any mention of a default/termination notice in your CPR 31.14 request as not relevant here. 

type your name ONLY

no need to sign anything.

you DO NOT await the return of paperwork.

you MUST file a defence regardless by day 33 from the date on the claimform.

[lolerz]

A copy of the bills. A copy of the yearly budgets, any letters regarding arrears you’ve had etc. Already have a statement so not worried there.

Especially important is a copy of any Section 20 notices for the works. Seeing these would be great as well.

 

A copy of at least the bit of the lease where it goes on about service charges etc would be handy as well to see if there’s anything about a reserve fund being collected and what proportion you are meant to pay (see if this adds up with what they’re demanding)

 

theres nothing really to gain by waiting to submit the acknowledgement of service at this point so get on MCOL on Monday morning and complete the above steps.

[lolerz]

Duplicate posts hidden.

Oddly, they felt the need to transfer £30k from the Service Charge to the Reserve fund and then plead poverty with a £7.5k deficit...

With that arrears letter, Were any demands for admin/legal costs accompanied by Summary of Rights and Obligations - Admin Charges? Too many MA/FH fail in this area and it makes any admin charges unlawful.

Get that Acknowledgement of Service sent off tomorrow via MCOL.

 

Now turning our attention to your defense:

When writing your defense, you need to go through their points in order and either admit or deny them. You would be looking to admit that you are the leaseholder but deny the charges. The best way to do this is to number each sentence in their particulars of claim and write a statement accepting or denying it 

 

Our standard holding/no paperwork defense will be a good basis for this but will need tweaking based on the points above. Plenty of claim form threads will have it posted so get reading up over the next few days (5-10 a day) and have a go at drafting up a defense. 

Their Particulars of Claim is so vague it could be for literally anything. Their entire point is that there are unpaid service charges pursuant to the lease and that they want interest. Normally for these types of claims, they'll mention in what clause of the lease are they demanding the service charges and they haven't done that. It's such a laughably weak Particulars of Claim for something like this that it reads that they've just done it at 4:55 pm before going home. Like they never bothered to read the lease, just know one exists (but have no idea whether it's enforceable)

I'd be looking to put them to strict proof on what basis the Service Charge is due and payable, how the arrears are made up, and what attempts at communication were made before the court claim.

They don't need to know that you hold a copy of your lease, it's whether they do and are willing to use it.
 

Include this line as one your first points:
 

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. 

Post up your defense here FIRST so that it can be reviewed and tweaked for submission!

 

[lolerz]

Yes 18th March

In regards to PAPLOC. Paragraph 3.3 of the Pre-Action Protocol states that the PAPLOC should be sent by post and that email may also be used. i.e They may send their PAPLOC by email AND post but not just email. It also explicitly mentions that other methods are communication are acceptable if you've made a specific request not to use post (you haven't done this). As such, they're not compliant with the pre-action protocol by sending it to you just by email.

Further to this. Under CPR 6.3 and PD 6A, Service by Email is only accepted should you have explicitly stated that you're willing to accept service by email.

[lolerz]

Yes, that is the case.

Your lease states the annual service charge is split equally which means the deficit will be as well.

[lolerz]

Each listed defendant should do the same thing individually.

[lolerz]

CPR 31.14 should request all documents they plan to use in their case.

I would request:

Invoices (including for their admin charges!), Section 20 Notices, a Statement of Account, a copy of your lease, a copy of the Year End Accounts for 2019 through to 2023, any reminder letters sent.

Lets see what turns up

[lolerz]

I imagine PCB Legal is handling the day-to-day operations for the freeholder.

 

Quite a common setup, also common for the freeholder's address to be that of the Managing Agent. (Speaking of which, you never mentioned who this was)

 

Freehold company has been set up with the sole purpose of holding the freehold title and collecting ground rent.

[lolerz]

Topic title updated.

[lolerz]

My understanding is said contract would be your lease.

 

No harm in leaving it in imo but let my site team colleagues double check.

[lolerz]

leave as is apart from what Andyorch mentioned.

Request the others in a similar manner to how you're requesting the contract

 

Post up what you've got in the end and we'll double check.

[lolerz]

seems fine but let others check also before sending it out