Being taken to court for shortfall

greenspun.com : LUSENET : Repossession : One Thread

Skipton B.S. have been chasing us for 6years for a shortfall of 89500 They have even written to me at work because I wouldn't fill in an expenditure form.Last letter from them said if I filled it in they would leave me alone for a year . That was 6 weeks ago.Today I have received a court summons for payment of the shortfall.Where do I go from here. Obviously I cannot afford to pay

-- June Tate (june.tate@airedale.co.uk), November 30, 2000

Answers

I believe you should ALWAYS obtain advice from a solicitor when you receive a Court Summons. In my opinion considering the size of the shortfall being claimed it would be very wise to do so in your case.

It might also help if, in addition to seeking professional legal advice, you read all the information provided on the HRP thoroughly, to see if there is anything that may help you in your case.

Good Luck,

-- Tony Hayter (Tony@Hayter.com), November 30, 2000.


Do you have a copy of your completion statement from the sale of the property? If not, write to Skipton and ask for one to be sent without delay. See your solicitor and ask him to put in a holding defence for you. Its possible that you can go to court and explain that this isn't a simple case and can you have more time to submit a defence please. The courts will usually agree to this.

Read through this website thoroughly, you will see the sort of information you need to get hold of.

Having already received a summons, can in some way be seen as a blessing. If the Skipton mess you around with documentation that you ask for - the Courts won't be pleased. Once you start digging, hopefully the Skipton will pull out and negotiate a much smaller amount.

Good luck. Come back to the board if you need help.

Pendle

-- pendle (pendle@amun-ra.demon.co.uk), November 30, 2000.


The summons will have given you a time limit within which to respond so you must do the following quickly:

1. Get a recorded delivery letter off to Skipton and/or their lawyer/debt collector requesting a copy of the mortgage deed, mortgage terms and conditions, MIG agreement if you had a MIG, copies of two independent valuations prior to the property's sale and documentary evidence that they marketed it properly and copy of the money order.

2. Go see a solicitor and tell him you want to: a) file a defence (Show him this email and make him/her think for their money) b) put Skipton to "strict proof" of the claim c) begin Discovery (and that you want to ensure that they don't use any "it got lost in the post"-style tricks to wriggle out of Discovery) d) file a counterclaim if any of the following apply: i. there was a MIG that you thought would protect you - counterclaim mis-selling, misrepresentation ii. you think they sold it too cheaply - counterclaim negligence iii. you think they sold it to a neighbour or landlord if it was a long-leasehold property (Skipton v Stott taught Skipton all about the issues involved in doing this) - counterclaim negligence iv. you think they didn't take account of bills for repairs that you may have already paid for a long-leasehold property - counterclaim negligence v. you have previously asked them to prove the claim and they haven't - counterclaim negligence for failure to abide by the Woolf reforms vi. summons is out of time if the repossession was more than six years ago (yes, I know, lenders claim 12 years, but do it anyway because Abbey allegedly backed off rather than see the Holmans test this in the Court of Appeal) vii If their letter asking you to fill in an Income & Expenditure form threatened you with court action or higher penalties if you didn't fill it in and if it also sought details of your partner's income and you have a partner, counterclaim harrassment and add that you have issued a complaint to the Data protection Commission over this breach of the Data Protection Act

3. If their letter asking you to fill in an Income & Expenditure form threatened you with court action or higher penalties if you didn't fill it in and if it also sought details of your partner's income and expenditure and you have a partner... complain in writing, enclosing copies of the I&E, its accompanying letter and the summons to the Data Protection Commissioner (recorded delivery - do everything recorded delivery) at:

Office of the Data Protection Commissioner Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF

4. Keep us informed

Your solicitor probably won't understand most of what I am talking about because few understand repossession law. But they do understand civil court procedure so you need them to keep you on track as you do defence, counterclaim and discovery.

If anyone can think of anything I've left out, please notify me privately and I will add it into this post. Or feel free to post it yourself.

Good luck June.

Lee

PS: A reader has added the following:

Due to the amount being claimed - this should be in the 'fast track' system - i.e. the lender should have all documents to hand - otherwise the defendants can have the case struck out - the rule of thumb which any decent solicitor will advise you privately is - that they won't issue unless all the papers are in place, due to the danger of being unable to deliver.

If you have a friendly solicitor connection he/she should confirm this.

-- Lee (repossession@bigfoot.com), November 30, 2000.


June,

Would it please be possible to know how things have turned out for you, especially after receiving Lee's detailed advice?

As you know this site is about sharing information and we all contribute what we can when we can. Your experience strikes me as being very important, and I would very much appreciate any information you can share with us.

I have some snippets which might be of interest to you, if you are still 'in the game', so to speak.

all best and many thanks.

-- Eleanor Scott (eleanor.scott@btinternet.com), December 17, 2000.


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