I have just recieved the summons for the shortfall claimgreenspun.com : LUSENET : Repossession : One Thread
I have just recieved the summons for the shortfall claim from MAES Finance. In the limitations the solicitor states " For the aviodance of doubt and in order to make the claimants position on limitation clear the claimant says as follows:
This is an action on a speciality debtfor the purpose of s 8 limitation act 1980. The defendant is in breach of covenant to pay principal and interest and the date of breach must (given that the mortgage was less than 12 years old both at the date of issue of proceedingsand the date hereof) be less than 12 years ago.
This can not be an action to which s 20 limitation act applies because: for the purposes of s 20(1) ( action to recover principal) the principal is no longer "secured by a mortgageor other charge on the property"; and
for the purposes of s 20(5) (action to recover arrears of interest) the arrears of interest are not payable in respect of any sum of money secured by a mortgage or other charge.
The claim is not founded as an action founded on simple contract for the purpose of a 5 limitation act 1980."
The thing is the claimant is MAES finance, whereas all along I have been dealing with Eagle Star, who am i fighting here? MAES finance have no record of the house, my name or claim number in a reply to a SARN served on them.
Any comments would be welcome
-- Jon S (email@example.com), September 15, 2001
Jon, Eagle Star are the insurers for Maes who are a subsidiary of CIBC. These in turn were taken over by Abbey National in 1994! Who did you take out your mortgage with? How long ago were you repossessed? We looked up Maes in Companies House and they are listed as a non- trading company, I am suprised they even replied to your SARN. We found all of this out after they had taken us to Court and obtained a money judgement order.
-- (firstname.lastname@example.org), September 15, 2001.
I understand that your mortgage must go back some years as these people stopped lending in the early 90's. You do not say when the repo took place or what has gone on since then? However, the phrasing of the summons suggests a certain anticipation of problems for Eagle Star and foil an attempt by you to get it struck due to time limitation. You will need to look elsewhere on this site for examples of where their case may be flawed. You would also be best to get some (proper) legal advice. It occurs to me though that your case could be a precedent setting example that we have all been waiting for; after the failure of the Holmans case to get to appeal. Interestingly, Abbey National were involved in that case, and they are involved in yours. I wonder if you should approach the solicitor who acted for the Holmans, to help you. This could also be a good time to get media inolvement; particularly if MAES/Eagle Star/Abbey National/CIBC are in breach of the CML guidelines. I am sure Eleanor can help with names of journalists. (I anticate taking my own case with Royal and Sun Alliance to the media in about a month - so if yours is still ongoing at that time, it could bolster the press invlovement). I hope also that other contributors to this site will respond to John on the site. This could be groundbreaking stuff. Good luck with this John, and please keep us all informed of your progress.
-- George Matthews (email@example.com), September 16, 2001.
Jon, could you tell us more about your case e.g when you got the mortgage and when you were repossessed,first contact etc,etc.
-- moss (firstname.lastname@example.org), September 16, 2001.
The case started back in 1990 when my house was reposessed on a cout order brought by MAES Finance, the mortgage was sold to me by Eagle Star, after that time I heard nothing till 1999 when a letter arrived asking for £22,756 Shortfall (the property sold for £48,000 mortgage was £45,000). The extra was for interest untill the property sold, repairs, advertising, admin charges and legal fees. I stupidly filled in an 'Income and Expenditure' form, to which they decided that I wasent worth the paper I wrote it on so let me know that nothing would be done at this time. May 2001 and I get a phone call at work and the ball started rolling again, by this time I had found this site so declined their offer to fill in an 'Income and Expenditure'. The whole thing snowballed from there, with myself asking for proof and them give them their due replying. Until I asked for the MIG and the proof of a valuation, then the matter went to their legal department. Ditto above. The latest was a summons through the door from MAES Financeand that is where we find ourselvs now. a total of 9 years from reposession 12 years from court hearing to court hearing. So much for a reasonable time frame for notification. I am now getting the information for the disclosure proceedure as well as asking for more time to prepare. I am happy to supply all the documents if someone would like to give me an address to post them to (I mean a house as I find scanners a bit hi-tec for my liking) so they can be placed on this website as a record of what happens (or a 'how not to do it' depending).
-- Jon S (email@example.com), September 16, 2001.
You should also read the material at: http://www.home-repo.org/dos/summons.htm on what to do if you receive a summons. To be honest it sounds as though you are pretty much on top of it as it is.
-- Lee (firstname.lastname@example.org), September 16, 2001.
I too had been in correspondence with Davis&Co regarding a shortfall claim for Abbey. In reply to my recent letter raising certain pertinent questions, the answer came back"We are unable to provide you with the mortgage deed as a copy have not been retained on our client's file." I wonder how all this battle for money would hold up in any court without an original contract. I too have just found out in that letter that Eagle Star were involved 3 years of the date of the sale. My mortgage was with CIBC and who knows when ES got involved! One other answer to the 6 year limitation rule to which they refer, in answer to my question"I also ask you to confirm whether the 6 year ruling and the issue of limitation starts from the point of default on payment of the mortgage or at the point of sale of the property" Davis reply"With regard to the six year limitation rule, the date is calculated from the last date of confirmed contact i.e. six years from the last correspondence received by ourselves from you or six years from receipt of the last payment made." I am unsure with Eagle Star's entry on the scene whether I too will now undergo the same treatment as yourself, but I am ready to raise the same issues with Abbey/CIBC/or whoever, with the unfair treatment with which they handle these individual cases. Abbey/CIBC sold my property at a major loss and now want their monies? I think not...
-- (ABBEYDAVISETC@aol.com), September 16, 2001.