Handed keys back in 1990, got County Court form today for Shortfall, help?greenspun.com : LUSENET : Repossession : One Thread
Facts: We lived in a first floor flat in Ilford, had £55000 mortgage with Abbey Nat. in 1988. Due to my son being born disabled and Oxygen dependent in 1990, we had to move to a Ground floor House/ Flat. Unfortunately due to the negative Equity situation we found ourselves in we agreed to hand our keys back to the AN. We expected to hear something from them but we got absolutely nothing until Eversheds contacted us by letter in 1999 stating that we owed AN a shortfall of £28000 after they sold our old flat in 1994. They then contacted me by phone at my place of work demanding the money, I explained we were not in any position to pay the money; their phone calls became twice weekly ones offering a reduction each time. I then found this site and contacted a solicitor who was recommended for free advise, she advised me that they should have informed us of the Court order for Repossession before selling our old flat and as they didn’t do so then they could take me to court and just let them try to explain this fact away to the Judge. They said fine we will take you to court but we heard no more. Then approx three months ago we started to receive letters to our current house ( we have moved 4 times since the AN flat- three within the same Redbridge Borough and now to Tendring) demanding payments. We ignored all their letters, until today ( 22/04/04) when we received a County Court Claim form from Cardiff stating that Eversheds were pursuing a shortfall of £28,346.92 pence for AN My questions are: 1. What solicitor do you recommend to deal with this? Have tried ringing all the help tel. no. on this site and ALL of them have answer phones on. 2. What can I do now, for ourselves, bearing in mind that we have only got 28 days to respond to the "Acknowledgement of service form" and considering the claim form was stamped 7th April?
-- John Davies (email@example.com), April 22, 2004
Correction: Having found some old papers, some of the above facts are wrong, Date we moved out of property Nov 1993, just after my daughter was born. Which means that they are now chasing us because the 12 year rule would apply from November 2004, so they can still get us! Only thing left as far as we can see is the fact that they did not formally repossess us, we had no court papers or anything. My question now is, can they still take us to court if they never entered a legal repossession order against us?
-- John Davies (firstname.lastname@example.org), April 22, 2004.
I will not lead with what you should have done, only what you need to do now. Firstly you need to talk to a solicitor who understands these matters; “strict proof” is the key word. By that you need the claimant to prove how they arrived at the sum they claimed. Also why they have waited this long to formally request payment. Disclosure (previously known as Discovery) is the best course of action. Please sit down and read the site and the do’s and don’ts, believe me a few hours looking at the site and generally “gening up” is much better than 20 years paying an old debt. At this stage mentally prepare yourself to having to pay between 5 and 20% of the claimed amount, as they have issued a CC summons they mean business. Do not make an offer, get advice, remember the old adage “someone who legally represents himself has a fool for a client”, I am not trying to say you are incapable of defending yourself, just that if someone else defends and advises you it takes some of the “personal” interfaces out of the equation.
So a staged plan of attack 1, Talk to a good legal advisor if he says lets make an off to pay the full amount either as a lump sum or over a period of time he is of no use, find someone else. 2, You need to turn the negotiating tables in your favour, eg show that you are going to fight this, and make the other party work hard (and spend a lot of cash in doing so) this always works in your favour. 3, Once you have created sufficient response and indicated you mean business then you need to get your advisor to make an offer, do not do this yourself, he will know the best time to slide in the offer, and the best way to do this. 4, Unlike the letters you received previously, the County Court Summons will not go away, you must react, but not over react.
Please keep the site up to date with your case, if you are unsure or anxious post it, there are a lots of people who are here to help, remember you are not alone, most of us have been where you are now, and survived.
-- A Friend (email@example.com), April 22, 2004.
I spent all day yesterday looking at this site and I found it excellent, I also spent a great deal of time looking at this site back in 1999 when Eversheds started their harrassment. The slight problem with the site is finding the exact information required, this is not a complaint but an observation and I'm surprised to find that a lot of the data have not been updated since I last looked at the site back in 1999 i.e. contact tel no. still showing the old 0171 London codes. As I said though- this is not a complaint and I will be eternally gratefull to the people responsible for this website- Thank You. After contacting all the help people listed on this site my wife got a call back today from Carol Riley,saying that she is sending me an information pack and also giving me another solicitor contact who specialises in this field. Will keep you up to date.
-- John Davies (firstname.lastname@example.org), April 23, 2004.
You made the following statement but..."Date we moved out of property Nov 1993, just after my daughter was born. Which means that they are now chasing us because the 12 year rule would apply from November 2004, so they can still get us!"...Don't forget that the 12 year limitation period runs from (usually) the 2nd or 3rd default on the mortgage payment, you need to check your mortgage terms & conditions to be sure, so providing the shortfall debt hasn't been acknowledged in writing or by part payment (telephone calls can't acknowledge a debt) then this debt may be statute barred (see previous postings). Furthermore, if you had an endowment mortgage and the defaults started on the endowment earlier than on the mortgage payments the 12 year period could start running even earlier. You should also check out the CML 6 year voluntary code angle (see previous postings). I would also suggest you look at the OFT website re the harrassment aspect "They then contacted me by phone at my place of work demanding the money". I would also get in contact with your local MP. If it is the case that the shortfall isn't statute barred or the CML vol. code isn't applicable in your case then you might want to consider making a nominal ex-gratia offer in full & final settlement of the alleged debt at the same time as putting the lender to strict proof. Failing everything one should also consider whether the new insolvency regulations might be of use, but that of course depends on each persons individual circumstances. Hope you find a good solicitor experienced in these problems to check all this out with. Good Luck.
-- M Amos (email@example.com), April 24, 2004.
Thanks for the advise Mark, will check it all out. Still waiting for a response from the NAMV person I was told to contact, I know their v.busy and will keep leaving messages on their ansa. phone until I get a response.
-- John Davies (firstname.lastname@example.org), April 26, 2004.
I was advised by a friend of mine who is a Judge that due to recent cases most Court Cases will go from the date the property was sold (or in our case auctioned for a pittance) off.
In our case the property was sold December 93 so 12 years is up Dec 05.
-- Chris (email@example.com), April 26, 2004.
As I understand it the Bristol & West v Bartlett  Appeal Court case re the 12 year limitation period can only be overturned by the House of Lords, and as far as I know this isn't the case. Nor is it reflected in the Barrister Gary Webber's page on the B&W case, see http://www.propertylawuk.net/mortgageshortfall2.htm . Where you say "most Court Cases will go from the date the property was sold", I'm assuming you mean the limitation period ? I'd be interested to know which court cases you are referring to.
-- M Amos (firstname.lastname@example.org), April 26, 2004.
I've e-mailed you separately as I trust you!
-- Chris (email@example.com), April 27, 2004.