Money Order Judgementgreenspun.com : LUSENET : Repossession : One Thread
What are peoples opinions on the requirement for the lender to get a money order judgement after repossession has occured. When I spoke to Carol Riley of NAMV she was positive about it being needed in order for the shortfall to be pursued. HAs anyone used this as an arguement and has anyone been succesful. I have read that over 200 people have had the alleged debt written off by using this arguement.
I am trying to speak to Carol further about this but as yet she has not replied to my phone messages.
Any and all thoughts appreciated.
-- Matt (firstname.lastname@example.org), November 28, 2000
My understanding is that Carol Riley runs a bit of a one women show and so, while caring a great deal about these matters and the people affected by them, cannot always respond as quickly as I'm sure she would like.
If your lender hasn't got a money judgement then I believe that it certainly loses the rather bizarre and arcane right to pursue you forever for the 'debt'. There may well be further implications concerning a lack of money judgement, and Carol Riley is certainly the right person to contact about this.
-- Eleanor Scott (email@example.com), December 01, 2000.
I would be interested in the outcome of your enquiry Matt, because no money judgement order (to my knowledge) was ever obtained against me or the ex.
-- Too scared to say (firstname.lastname@example.org), December 01, 2000.
Sorry to put a spanner in the works yet again, I didn't have a money judgement order either but they took me to court 6.5 years later and obtained one!
-- jacky jones (email@example.com), December 01, 2000.
They do not have one and have written to say;
It is our understanding that no court proceedings ever took place and they do not have a money order judgement but do not need one'
From what Carol told me back in October when I spoke to her they must have one, as Jacky found out to her cost, but it is very unlikely that they will go to court to get one after this amount of time. I have used text from this site and a bit of advice given by a friend to say:
'I am advised that a money judgement is a court judgement that a borrower owes the shortfall amount remaining after lenders sold their repossessed property. Lenders should seek such a judgement from the courts shortly after they repossess and, where this is refused, have to return to court within one year of selling the property in order to issue a summons for the shortfall.
Please explain why no court proceeding were taken in order to comply with the requirements above. I am advised that if this action was not carried out then there is no debt.'
This and a lot else was in a letter sent on 16th November, since when - Nothing. I will write soon using text as in 'Action when it has gone quiet'. Whatever happens I will keep you posted.
Thanks for the help
-- Matt (Mattyc@ntlworld.com), December 02, 2000.
From what I understand a money order judgement and a county court judgement are the same thing, right?
If so, then how come Mattyc's advice is that a money judgement must be obtained within one year of selling the repo'd property but we're told that the lenders have 6 (or 12) years to chase us?
Does this mean that proceedings for the shortfall must take place within one year and if they don't, they've no right to pursue us? And if they do get a judgement, then they've up to 6 years (or 12) to enforce it?
-- pendle (firstname.lastname@example.org), December 03, 2000.
It is my understanding from speaking to Carol and from text on this site about money judgements that they 'should' return to court within 1 year of repossession to get one. Without this they are not supposed to have a claim against you. As Jacky has said they seem to be able to go to court later than this to get one.
It seems that we need to speak to Carol Riley to get moreinformation about this. I will try again and wou;ld be grateful to anyone else who tries as well.
-- Matt (email@example.com), December 04, 2000.
I found this at http://www.sprgr.co.uk/uplend.htm#claims under the heading 'A Guide for Lenders' just after a lot of stuff all about repossessions!! Following the last, VERY INTERESTING, comment it quotes Hopkinson v Tupper 1997.
Claims for Money Judgments · A Money judgment in addition to a claim for possession is simply a new remedy and not a new claim: Particulars of Claim can therefore be amended at any stage to include a Money Judgment. Lloyds Bank Plc - v - Rogers (16th July 1999) The Claimant Bank sought to amend the Particulars of Claimafter the limitation period had expired to include a Money Judgment in addition to the claim for possession. Held: The amendment was allowed as:- · it was a claim for a new remedy a new cause of action. · alternatively, if it were a new claim, it arose out of the same or substantially the same facts as the possession claim and the Court would have been prepared to allow the amendments. · It is seriously arguable that a mortgagee’s claim for the shortfall after he has repossessed and sold the security is in simple contract and therefore statute barred after 6 years.
-- Matt (Mattyc@ntlworld.com), December 04, 2000.
Here's a copy of Lloyds Bank -v- Rogers:
LLOYDS BANK PLC (Claimant) v DEREK EDWARD STUART ROGERS & ANOR (Defendants) (1999)
CA (Evans LJ, Auld LJ) 16/7/99
Amendments to a county court mortgagee possession action to add a claim for a money judgment were properly allowed.
Appeal by the first defendant ('Rogers') from the order of HH Judge Anthony Thompson QC upholding the decision of Deputy District Judge Rutherford to allow the claimant ('the Bank') to amend its particulars of claim in a mortgagee possession action by adding a claim for a money judgment in respect of principal and interest due under the mortgage. Rogers resisted the amendments on the grounds of limitation, relying on s.35(5) Limitation Act 1980, RSC O.20 r.5 and CCR O.20 r.1. The Bank commenced possession proceedings in the county court following a formal demand. The proceedings were in the form prescribed by CCR O.6 r.5(1), giving certain particulars of the mortgage and the sum allegedly due under it, but did not contain a money claim. The deputy district judge allowed the Bank's application to amend to add such a claim. The appeal raised the following issues: (1) whether the proposed money claim was a "new claim" within s.35(5) entitling Rogers to rely on a limitation defence. (2) If so, whether the cause of action in respect of that new claim arose out of the same or substantially the same facts as those already pleaded. (3) In either case, whether the amendment should have been allowed in the exercise of the court's discretion.
HELD: (1)(a) (per Auld LJ) The original claim pleaded all the essential matters of fact necessary for the new remedy, with the consequence that there was no new cause of action, since nothing was sought to be added to the "factual situation" already pleaded; (b) (per Evans LJ) It would be self-evident that a new claim was being added were it not for the fact that the Bank, in compliance with the rules and for no other reason, had pleaded full particulars of the sum allegedly due under the mortgage. The money claim was nevertheless conspicuous by its absence and the attempt to add the new remedy was, in the circumstances, an attempt to add a new cause of action. (2) The facts relied on in support of the money claim were undoubtedly the same, or substantially the same, as those already claimed, and the judge was therefore correct to allow the amendment on that ground. (3) The exercise of the judge's discretion in favour of the Bank could not be faulted. It was not a misuse of the power given by RSC O.20 r.5(5) to allow the Bank to override the limitation period by seeking an alternative remedy arising out of the same or substantially the same facts, to cover any shortfall on the security the subject of the possession claim.
Simon Browne-Wilkinson QC and Jeffrey Chapman instructed by Foot & Bowden for the claimant. Miles Croally instructed by Alison Trent & Co for the first defendant.
LTL 16/7/99 : (1999) EGCS 106 : (1999) 38 EG 187
-- pendle (firstname.lastname@example.org), December 04, 2000.