Am I right in thinking (Eagle star)greenspun.com : LUSENET : Repossession : One Thread
I have now recieved the 'Notice of Allocation to the Multi-Track' form from the courts. Am I right in thinking that the form to use for Standard Disclosure is N268 (Notice to prove documents at trial) or is there another form.
The conditions set out in the notice are:
Each party to give standard disclosure to every other party by list
The latest date for the delivery of the lists is 8th Jan 2002
Requests for inpection or copies be made by 15th Jan 2002
Witnesses of fact statments to be exchanged simultaneously by 19th Feb 2002
Permission is not given to use expert evidence, none being necessary (Eagle Star had a witness lined up, quite what this chap witnessed is beyond me I can only assume that he had a good story to tell?)
Requests for clarification or further information based on a document disclosed or a statement served must be served within 21 days after disclosure or service and must be dealt with within 21 days of being served
Listing questionaires be filed by 19th March
The Claimant is to lodge trial bundle 7 days before the hearing together with a case summary
The case is listed for hearing 13th May
I would like to fight this myself, Its a principal I feel that simple cases, like this, should be able to be sorted out by Joe Public.
I can see many phone calls to the County Courts for procedural guidence, as well as calling on the good people of this site for their knowlage.
-- Jon S (email@example.com), December 24, 2001
Just for information the defense and counter claim went somthing like this:
Claim No. ?????????
For the purpose of this claim:
“the mortgage” means the Deed of Mortgage dated 8 September 1989 and signed by myself alone. “the property” means (the address of the property). HM Land Registry Title No. (number) “MIG” means Mortgage Indemnity Guarantee taken out at the time of the mortgage
3. Inaccurately recorded condition
4. The property was sold for £45,000.00 after expenses (Eagle Star, Statement of Loan Account, page 6)
5. The mortgage deed was broken and therefore all covenants no longer applied.
6. For the avoidance of doubt and in order to make my position clear:
a, This is a simple debt under s 5 Limitation Act, Hopkinson v Tupper (1997), Court of Appeal
b, Proof of debt has not been provided, 2 indipendant valuations of the property, Cuckmere Brick Co Ltd v Mutual Finance Ltd  Ch 949, s 4 para 1(1)(a), Standard Chartered Bank v Walker  3 All ER 938, Schedule 4 para 1(1)(a), The Building Societies Act 1986
7. MAES Finance Ltd, have no knowledge of myself or the property, as of 10 April 2001
8. MAES Finance Ltd, subsidiary of Abbey National Building Society, are members and have signed the Council of Mortgage Lenders agreement for the ‘6 year limit rule’ as from 11 February 2000, This is also backed by the Association of British Insurers.
1. Under the Property Act of 1925, a lender is required to serve a recorded delivery notice on you or your last known address within 28 days of sale. This shall contain:
1. the date of the mortgage deed under which the power of sale was exercised. 2. the address and description of the property sold 3. the name and address of the vendor 4. the name and address of the purchaser (and any sub vendors) 5. the amount for which the property was sold 6. whether the sale was by private treaty or public auction 7. the completion date of the sale
As of this date no such notice has been served.
2. Notice of alleged shortfall was not notified until 26 August 1999, Notice of accruing interest was not mentioned until 15 September 2001. under THE THEFT ACT 1968 s17 - False Accounting. 1. Where a person dishonestly, with a view to gain for himself or another with intent to cause loss to another:- Destroys, defaces, conceals or falsifies any account or any record or document made or required for any accounting purpose; or In furnishing information for any purpose produces or makes use of any account, or any such record or document as aforesaid, which to his knowledge is or may be misleading, false, deceptive in a material particular; he shall upon conviction on indictment be liable to imprisonment for a term not exceeding seven years. 2. For the purposes of this section, a person who makes or concurs in making in an account or other document an entry which is or may be misleading, false or deceptive in a material particular or who omits or concurs in omitting a particular from an account or other document is to be treated as falsifying the account or document.
3. This action has not been brought within a reasonable time, article 6 Human Rights Act 1998, thereby certain life changing decisions have been made that would not otherwise have been made if the debt had been known about.
4. Cost incurred in the preparation of this defence amount to 43 hours @ £15.00 ph = £645.00
So there you go
-- Jon S (firstname.lastname@example.org), December 24, 2001.
It won't work Jon - if there is a mortgage deed in your name which has been signed by you and is properly authenticated, that is proof of the debt. Even though there may be procedural errors in what the BS have done, or not done, no Judge is going to throw out their case because of these though the BS may be penalised by loss of some interest as a "punishment" As far as notifying you of the sale within 28 days, note that this can be your last known residence which is..........the repossessed property! Unless of course they have other address for you.
The Theft Act bit - non starter this - County Courts dont deal with theft and I doubt very much the Police will involve themselves if you report it. The whole matter is a Civil contractual one and the evidence required is not as strict as the criminal courts.
I hope you haven,t filed that defence! See a solicitor - don't try and go it alone otherwise you may dig yourself in a lot deeper than you can shovel yourself out of and more importantly, you may increase the costs to the other side which you ultimately might have to pay!
Get proper legal advice on this - you have enough time, but if any time limit is upon you, simply send a letter to the court to ask for more time as you are seeking legal advice - it will normally be granted.
-- David J. Button (email@example.com), December 24, 2001.
Thank you David for your helpful comments. While you are correct the mortgage deed is proof that there was a debt, my defense is that: a) after 6 years the debt can no longer be chased b) the lenders have not kept within the law in providing a letter containing the listed items (whereever posted) c) the lenders have breached another with the Human rights act d) wether criminal or civil the theft act still applies, and would lead the way for a private action upon the lender
I will agree all the 'ins and outs' can make your head spin, a solicitor although qualified may not be as familia with this side of the law as even myself (having done nothing else but for the last 3 years on this case)
-- Jon S (firstname.lastname@example.org), December 24, 2001.
Go for it Jon! I have consistently found (over the 11 years or so since this nonsense started for me)the advice of solicitors to be ill-informed. I too have concluded it's safer to go it alone as far as possible. This is not because solicitors are bad or stupid - far from it - but as you say, if you've spent 3 years on it, you are the expert. I'm just completing a PhD in an obscure branch of theoretical linguistics, and having spent 3 years on it, it is recognised that I am the world expert on that particular little question. The same thing applies I think to your shortfall case (and mine).
-- Melody (email@example.com), December 28, 2001.
I can't comment on the legal aspects of your question because its not my area of knowlege.
I would however add my own comment, and personal opinion, that most solicitors are not real experts at anything, except in the very proftable business of buying and selling of houses. They tend to be all round legal generalists, and they appear to just hate doing or saying anything which might upset anybody, espec the banks and mortgage providers who butter their bread. I've found out the hard way that I personally know more about certain areas of the law than several solicitors I've used, and its taken me many many months to connect to a solicitor that I trust to pursue my case.
Best quote from one aolicitor to a third party was; "He thinks he's got a case against Abbey National? I ask you, how silly can you get?".
He who laughs last and all that.
-- anon (firstname.lastname@example.org), December 30, 2001.