Hi(posted 7369 days ago)A couple of points on an excellent posting from JUST ASK. I agree with almost all of what was said but wonder whether it is wise to let a claim go to court if it is not absolutely necessary and there is not a realistic defence to the claim or a substantial part of it, especially where the borrower is, as was said, vulnerable due to being a home owner again.
Over the years I have seen too many people fight inappropriate cases in court and end up losing, with heavy costs penalties and six years worth of interest on top.
On the issue of interest, have you come across Halifax v Adamson? I haven't got the case to hand but from memory it concerned a claim (or counter claim) for underselling. The borrower was successful but was not awarded all the interest she was entitled to due to having delaying her (underselling) claim.
However, interest is not usually an issue in the shortfall cases I see as lenders usually appropriate all payments to interest. This is the general rule anyway, and is often included in the terms and conditions. Also, since West Brom BS v Crammer, a lender is entitled to appropriate payments up until the time for skeleton arguments.
So, in practice, most shortfall claims are made up of principal (+ statutory interest if they go to court).
Also, I am concerned about how lenders will react now to SARNs. Any recent experiences would be helpful.
I have come across numerous cases where lenders will not exchange info and documents in breach of the Overriding Objective of CPR 1 and the Pre-action Protocol Practice Direction, but this usually only results in a costs penalty, if that.
All the best
Guy