Help very bad Solicitor over paid me on house sale

[Tandy32]

Hi great site everyone, I would be gratefull for your help on the following, sorry its a long story I will try to keep it as short as possible.

 

Five years ago my other half became sick so I had to quit the business I was in and started a business working from home so I could take care of her.

 

The business wasnt very successful and we got into a lot of financial problems, she is now better and I can return to the work I used to do but needed to complete some courses to bring my now out of date qualifications back up to date.

 

We sold our house last year with a view to using the money to pay off our debts, pay for the courses and rent a house while I complete the courses and get back into work.

 

We used a solicitor recommend by our estate agents who turned out to be an absolute knightmare, we were under the impression he worked in a team of solicitors but disappeared off on two holidays without having any cover during the sale once for nearly three weeks and the other time for a week, both times we only had a few days notice of these holidays, he worked from home on Fridays and refused so refused to do completitions on fridays as according to him it could mean he might have to do some work on a saturday if there was a problem.

 

All along I had to almost plead with him to chase things up with our buyers solicitors who were also very bad, plus he never sent through things like redemption statements even though I asked for them several times.

 

I had spoken to both our mortgage companies about getting a redemption statement to him as I wanted to avoid further delays and they both informed me he had to ask them for the statements directly and that they would take upto 5 days, I asked him repeatedly to apply for these but he refused to do it until the completition happened, once the completition happened he applied for the statements and received them a week later, he paid us our money and I thought this was an end to the matter.

 

About a week later our main mortgage company called to say they hadnt been paid so I called the solicitor to be told the mortgage redemption statement didnt have there bank details onit so he couldnt pay them and was going to send them a cheque today, I went mad a nd told him every day we were being charged interest on the account so to call them and make the payment which he did.

 

All his delays in going away on holiday and delaying payments caused us a month or twos interest so we were not happy, but atleast we could now get on with our lives and start working towards getting our financial situation back on track, since then I have found out about the bank charges situation and have calculated that we are owed thousands of pounds which I aim to start recovering once all the courses are finished and I can properly read up and learn about it all.

 

We then received a cheque for around £450 from the solicitor saying it was from the mortgage company and that a copy of the letter from them explaingin what the overpayment to them was enclosed, the copy letter wasnt enclosed.

 

Now the problem happened my other half was due to give birth on the 12th December 2006, on the 11th December we received a letter from the solicitor informing us that after an audit by his bookeeper he found that he had over paid us by £4000, my heart fell to the floor upon reading this.

 

I wrote straight back to him asking for copies of all the letters, redemption statments etc and a copy of the overpayment letter from the mortgage company, I explained that we were due our second baby so if he could rush the info over to me before christmas I would have a chance at some point over the christmas/new year break to look at it and get back to him.

 

He wrote back dating the letter the 21st December, which I didnt receive until the 29th December saying he had provided all this information as and when it happend (which he on the most part didnt) and that it was a basic arithmetical error and we should have spotted it, he then said he enclosed copies of all I asked for (still the overpayment letter wasnt enclosed).

 

Our second child was born two days earlier on the 27th December so I was not in a position to properly look through things until this weekend, which I dont think is overly unreasonable considering the situation, he wrote to me at the start of last week stating that we had ignored his letter and so are showing an unwillingness to pay and therefore he will be commencing a County Court claim against us, he has put in another letter as well with a subject line stating "Without Prejudice" saying that it was a factual error but he is prepared to accept £3000 in full and final settlement as the calculations he sent me showed an error of £3000 the other £1000 was because he put the wrong redemeption figure on the statement he sent us but he needed to recieve the money by last Friday.

He goes on to say that if the error had been the other way around we would have noticed it and if it isnt paid by Friday he will start proceedings against us.

 

I emailed him and explained I only got his email two days after the birth of our second child and although its taking me a couple of weeks I would be going thorugh the information this weekend and he would receive my reply by Tuesday.

 

He emailed me back saying I have had long enough and that I have admitted that he had informed me on the 11th December and that its been 40 days. he then says "Obviously you can take up the matter of inadequate professional service, which will be vigorously denied, with the Law Society" - I have never mentioned to him anything about his service or about making a complaint but think I probably will now.

He then goes on to say I am deliberately stalling and that my continual "not to repay it is legally theft".

 

He says he will reluctantly extend the deadline until Tuesday but will require the money in cleared funds into his account or he will issue a summons.

 

Now I am not looking to get out of repaying a mistake if it has been made, but we just dont have the money now we have spent the proceeds on our debts and rent and the courses which I have finished yet, on top of this the house we are renting has served us notice as they want to now sell the house and we are moving to another rented house in 3 weeks time.

 

I feel angry at the postion I feel he has put us in, he is making out I have stolen this money from him because I should have spotted it on the statement, which really didnt have much info on it and no I didnt get my calculator out and go through it and check it all added up.

 

I am thinking all I can do is write to him explain the situation and ask to pay a token amount of £10 per month until I have completed the courses and am back in work when I would then be able to increase the payments to a more realistic level.

Not sure if this is something he would accept as he seems very ready to take us to court but there isnt anything else I can do.

I also feel like I want to detail out all his mistakes and complain to him but I imagine this would just get us closer to a court room with him, which obviously I dont want.

 

Really not sure what I can do - would he have to accept our offer or could he just take us to court and get the baliffs sent to us - and in that case should I not tell him we are moving and not give him our new address so that I have sometime to get the money together - I would really be greatful to anyone for some advice on this???

 

 

P. s. sorry for the long post!

[dar£n]

Firstly, ask for all communications that he allegedly sent to you originally to be resent for your inspection.

Tell him you are willing to pay back the amount IF he can prove it was credited to your account and that he attempted to inform you within a reasonable timeframe after - then tell him you are offering £2 p month

If he takes you to court then put in your defence stating his incompetence while dealing with you as a client and not acting in your best interests etc.

If it does go to court and you are told to pay up, then offer your amount, like £2 p week, after all you have a child to look after.

[Tandy32]

If it went to court and the judge agreed for me to pay in installments would I then get a ccj against me??

[Tandy32]

Also when he accuses me of theft is this libel??

[dar£n]

i may be wrong on this but I thought a ccj is where YOU are ordered to pay but if you volunteer a payment schedule i dont think they can issue one.. get it checked tho'

The deinition of 'THEFT' is, obtaining something that doesnt belong to you dishonestly with the intention of permantly depriving the rightful owner [http://www.lawteacher.net/Criminal/Property%20Offences/TA%201968.pdf].

Defamation is a general term for the false attack on your character or reputation through either libel or slander. Libel is a term describing visual defamation, usually in the form of lies in print, or misleading or deceptive photographs.

[Bigmac versus]

Sorry to hear of your troubles but if this is an overpayment that he has made to you, then firstly he has to prove this to you, do not be pressurised into agreeing anything with him until he shows the paperwork, and dont talk over phone, keep all correspondance by mail, recorded.

[poppynurse]

I would also involve the Law Society - sounds like he is useless

[Guest Battleaxe]

I would serve an SAR under the Data Protection Act on him £10.00 (postal order crossed, sent special delivery). This will give you forty days and he has to comply, after all he was dealing with your conveyancing for the house sale.

 

I would also notify the Law Society and send him a copy of your complaint, send it recorded delivery.

 

I have a feeling he is trying it on and is going to play you for sucker. He knows how vulnerable you are at this time.

 

 

If he tries to take you Court and it will be the small claims route for sure, you will have to opportunity to lodge a defence and get his claim struck out, after all he will have to put up or shut up. he can also be sent to jail if he attempts to commit perjury by falsing claiming this money back from you.

 

Start with the SAR, word to suit your circumstances that you want copies of EVERYTHING he hold on your file including the audit report that states he over paid you. Ask for his auditors name and address and tell him that if does not compy within the statuatory time period you will be lodging a complaint with the Information Commissioners Office. This might just bring him to short sharp halt. He thinks you do not know your rights.

 

This is not legal advice, but this is what i would do if I was in your place. At the moment you have nothing to loose and a lot to gain.

 

Good luck.

[electron99]

Whatever else you do, write to the Estate Agent with a detailed complaint.They may argue that they only recommended the solicitor, but I think you will find that in law they will still be partly responsible.If nothing else, the Estate Agents will take this solicitor off their recommended list, and hopefully they will tell him why.

[JonCris]

Randy do you have a 'client care letter' & does it as well as setting out the fee structure also set out the firms complaints procedure. You should have received such a letter at the outset & it should name the partner to whom you complian.

 

My advice is to 1st complain in writing asap setting out the facts as you have here. The chances are that as the guy works from home, at times, his work is not supervised.

 

After you have done that let us know the result & we can take it from there.

 

Also are you sure this person is a qualified solicitor (check the Law Society website Law Society of England and Wales - Home) as his comments about theft are nonsense in this context.........frankly he sounds like an idiot

 

PS I note in some of the other posts complaining to the Law Society is mentioned. You can & should do that but they will have expected you to have 1st complained to the practice using their compliants procedure.

 

Save complaining to the Law Society if you don't get satisfaction but do mention your intention in your letter of complaint

[lurker1]

Yes ask for all the info before responding with an offer of payment.

[dar£n]

Tandy, there has been some EXCELLENT advice offered here esp from Battleaxe & JonCris,

DO NOT offer payment until you are satisfied he is entitled to it. Sounds like there are going to be too many gaps in his audit trail for him to complete his claim. It will only take one refusal of forwarding any information you are entitled to from him to make the court consider incompetence on his part.

NAIL HIM TO THE FLOOR![lol]

keep us posted.

[Dr Gonzo]

Good practical advice here: one legal point.

 

Before he told you that he had overpaid you, while you were oblivious to the alleged overpayment, and in good faith kept the money as your own; did you make any purchases, any payments, on the basis that you had a certain bank account balance, that you would NOT have made in any event (so not ordinary bills, but (say) something special, for the new kid, or the wife)?

 

If so, and insofar as the solicitor is claiming money paid out in mistake, then you can DEDUCT the amount of such PURCHASES MADE IN RELIANCE ON YOUR ALLEGED ENRICHMENT. You were innocent and in good faith, had, according to his case, more money than you should have had, and in good faith you spent it. It was his clerical error. You can deduct such payments. The Defence is called CHANGE OF POSITION, and it's for you to establish. It's a defence to the solicitor's claim in RESTITUTION for "MONEY HAD AND RECEIVED". i.e. the mistaken overpayment ONLY. I think solicitors have other claims against clients, called "LIENS" and such like. But from what you say he is bringing a restitution claim against you. It also fits with his allegation that you "shoul have spotted" the mistake. He is saying that so that any special expenditure is not deductable by you.

 

Sorry for a rambly post, but I thought you should know that you do have a defence if you relied on that mistaken payment (if it was a mistake). Make very clear that you were not given the proper correspondence, and also make clear what expenditure you are deducting, if any.

 

Good luck.

 

PS- he has made you a Without Prejudice Offer for tactical reasons, you need to work out what you owe him, and what you can fight, and make a counter-offer. If you can, engage a solicitor used by someone you know.

[Tandy32]

Cant thank everyone enough for the great advice, I am writing to him this morning advicing him that I still havent received all of the information needed and cant do anything until he provides it, I am also going to inform him that I will take his advice and make a complaint to the Law Society and will forward him a copy over the next week when I do it and will also be seeking advice on his libelous comment that I have committed theft which I belive was defamation.

[demon_x_slash]

I would still word it so that you are making a request under the Data protection Act - this way he has a legal obligation to comply, within a legally set timescale.

[artoo]

Contact the law society complaints department.

http://www.legalcomplaints.org.uk/

or call them on 0845 608 6565

It sounds to me that if you are liable to pay anything it’s as result of his negligence.

[Guest Battleaxe]

Tandy , Has anything further happened?

[Stornoway]

On the CCJ point, theoretically if it did go to court and you lost then I understand that you have the option to pay the amount back in full within 30 days via the court and if you do so you won't get a CCJ on your credit file.

[becka]

I work in the finance department of a law firm. We come across similar stories when the lawyers forget to clear their fees with completion monies which they send back to the client. But if you don't understand how you owe the money DON'T PAY IT.

Your first step would be to speak to the accounts department of the law firm. They will probably be able to explain exactly how/why an over payment was made (if one was)

They should also be able to tell you who the supervising partner on the matter was - and therefore who you should initially complain about the solicitors conduct to. Often they may even be able to intercede and help make repayment arrangements if they are needed

The Law Society should be your next step if the issue isn't resolved by complaining to the Partner

Hope this helps

[JonCris]

Hi becka

 

Welcome

 

Joined June 2006............ & this is your 1st post!

[becka]

no it's not ... am not a prolific poster but if you look at all my posts you'll find I've done it 60 times!!

 

But thanks for the welcome