County Court Summons - Mortgage Shortfall - Advice Needed Urgently, Please Help !!!

[Count]

After wife left me in 1996 house was repossessed beginning of 1997. As far as I can remember there were some arrears dating back to 1995 which we were trying to pay until the point wife left me.

I have not heard anything from Halifax all these years.

Now they sent me via their solicitors county court Summons for shortfall of £15.000 + interest of £ 13.000.

To the best of my knowledge I can not recall ever having any information from them about shortfall following repossession and sale of the property and I have never acknowledged liability for it. I do not now if they have ever been in touch with my ex-wife and whether she acknowledged liability in any way.

Please, please can somebody help me with some advice?
What options do I have?
Is their claim statue barred? Can they still pursue me after all this time?
Do I defend the claim and by doing so am I acknowledging the shortfall?
If I don't defend the claim what would happen if they register CCJ against me.


I do not own and have not owned another property since and I live with my girlfriend in her house. If I do not defend the claim and Halifax register CCJ against me what can they do? Can they pursue my girlfriend or take charging order against her property?

Is there anyone I can talk to or who could deal with this on my behalf?

[sequenci]

Originally Posted by Count

Is their claim statue barred?

partly, they have 12 years to chase you for the capital, 6 years for interest

Can they still pursue me after all this time?

yes they can

Do I defend the claim and by doing so am I acknowledging the shortfall?

do you have grounds to defend?

If I don't defend the claim what would happen if they register CCJ against me.

you will need to make an offer to repay the debt over a reasonable period of time.

I do not own and have not owned another property since and I live with my girlfriend in her house. If I do not defend the claim and Halifax register CCJ against me what can they do? Can they pursue my girlfriend or take charging order against her property?

unlikely, they could argue you have a beneficial interest in her property but it's sometimes a nightmare for them to prove.

Is there anyone I can talk to or who could deal with this on my behalf?

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National Debtline England & Wales | Debt Advice | Factsheet 11 Mortgage Shortfalls

[PriorityOne]

Originally Posted by Count

After wife left me in 1996 house was repossessed beginning of 1997. As far as I can remember there were some arrears dating back to 1995 which we were trying to pay until the point wife left me.

Was the last contact/payment made re. the account in 1995 ?

I have not heard anything from Halifax all these years.

If so, then you are either very close to the 12 year timeframe, or just coming up to it..... so you need to be careful what you put in writing at this point. I imagine this is why they have gone straight to the Summons stage, instead of contacting you beforehand.

Now they sent me via their solicitors county court Summons for shortfall of £15.000 + interest of £ 13.000.

The interest would be statute-barred, so they can't claim for this now. I'm no legal expert... but you should have a defence with this aspect of their claim. If they have contacted you after the 12 year deadline however, then the whole account would be statute-barred.

To the best of my knowledge I can not recall ever having any information from them about shortfall following repossession and sale of the property and I have never acknowledged liability for it. I do not now if they have ever been in touch with my ex-wife and whether she acknowledged liability in any way.

They could approach both of you for a joint liability debt.

Please, please can somebody help me with some advice?
What options do I have?
Is their claim statue barred? Can they still pursue me after all this time?
Do I defend the claim and by doing so am I acknowledging the shortfall?
If I don't defend the claim what would happen if they register CCJ against me.

You need Tomterm8's CPR letter.... As you have already received a Summons, it wouldn't be fair for me to advise you further. I will PM Tomterm8 for you and ask him to look in.

I do not own and have not owned another property since and I live with my girlfriend in her house. If I do not defend the claim and Halifax register CCJ against me what can they do? Can they pursue my girlfriend or take charging order against her property?

If she is not named on the mortgage, then no. There is also precious little they can do to you in real terms if you own no assets. A CCJ means that you will be legally tied to making repayments on the debt, but these can be brought down to an affordable level if they're set too high anyway.

They are trying to pursue you for quite a whack with interest. Your first task is to see if they have any right to do this...as they may well be just beyond the legal timeframe for doing so. As said before, the interest would be statute-barred anyway....

Is there anyone I can talk to or who could deal with this on my behalf?

[tomterm8]

Sequenci, is it possible this might come under the council of mortgage lenders voluntary agreement not to chase shortfalls except within 6 years?

Your Address


DATE

The Mortgage Company Address


Dear Sir/Madam

Re:− Account Numer

Please supply us with a full breakdown of the balance claimed under the above account.

In order for us to deal with the matters you raised, we should be grateful if you would supply we with answers to the following points:

• when did the arrears begin?
• when was the last payment made on the account?
• when was any Possession Order given?
• when was the house sold?
• what valuations were made on the property before the sale?
• what costs were involved in maintaining the property during the period between the repossession and the sale?
• how was the house marketed and sold and at what price?
• what costs were involved in selling the property?
• has a claim been made against the indemnity insurance and how much was recovered?
• how has interest been calculated from the start of the arrears?

Please supply us with a full breakdown of the balance claimed under the above account. We look forward to receiving your reply as soon as possible.

Yours faithfully
Mr A N Other

[sequenci]

Originally Posted by tomterm8

Sequenci, is it possible this might come under the council of mortgage lenders voluntary agreement not to chase shortfalls except within 6 years?

arrrghh, my notes on the CML code are at work. it's ossible although i've lost count on the amount of lenders who don't give a damn about their so-called code. it's another "OFT debt collection guidance" lol.

i'll report back tomorrow

[Ell-enn]

subscribing

[pt2537]

Can i ask what are the Particulars of Claim?

it would be helpful to know exactly what they are claiming to be able to provide any such defence, remove all the personal details obviously first.

also i would send the letter Tom suggests


regards
paul

[rory32]

You need to post The Particulars of Claim as Paul has asked you to do. As has been previously stated the interest is most certainly statute barred.


By what date do you need to acknowledge service of the claim?

[sequenci]

Ok... I'm at work now

So here are the things we need to find out...

Is/Was the lender a member of the council of mortgage lenders?
Were you contacted within 6 years of sale OR before 11.02.00?

What needs to be considered is that "contact" is VERY different to the contact (acknowledgment) in a statute of limitations argument. For a lender to have made contact all they need to prove is that they have contacted you, either via a letter or via a telephone call. The letter could have even been ignored too.

[Count]

Hi Priority One
Thanks very much on your reply, very much appreciated

1. As far as I know the last payment was made either in 1995 or 1996, I believe that arrears started in 1995 as that was the time that things started going down the hill with my ex-wife, to be honest it has been such long time that I can not remeber. It was 1996 when my wife left me. I am not sure whether they have been in contact with her afterwards or not, I have certainly had no contact from them till this year when I had some letters from debt collection agency claiming to be under BOS instruction to which I did not reply.These letters were sent ordinary post not recorded delivery.

2.They are claiming interest from the date of sale of the house which according to them was in Aug 97 to date at the rate of 8% ccording to s.69 of the county court Act 1984 and continuing at the rate of £ 3.50 per day.

[Count]

Hi Tomterm 8

Thank you very much on your reply, forever grateful and very much appreciated.

Tom as I have been isued county court Summons do I reply to the court that I wish to defend the claim then send letter you suggest to lender and copy it to the court to let them know that I have requested information from them about the alledged debt asking them in fact to prove it.?

[sequenci]

I really think you should consider a part18 request to obtain a statement of account. You might have a limitation argument for the whole debt, possibly?

[Count]

Hi PT2537

Thanks very much on your reply and offer of help, very much appreciated.

What they are claiming in their particulars is the folowing:

Difference from the sale price of the house and amount due at completion ( £11.000)+ Cost of sale ( £ 7500) les somesubsequent payments of £ 2500 which I am not sure what these are and when they have been paid. This could have been in 1995 when arrears occured first that we made some extra payments on the top of the normal mortgage payments to pay off arears at that time. I doubt that this will have been paid by my ex-wife after divorce, I do not think that lender have been in touch with her as she no doubt would have told them my address to contact me instead.

So the total amount they are claiming i around £ 16.000 plus £ 13.000 in interest ( 8 % from the date of sale up to date and continuing at the rate of £ 3.5 per day)
YOU WROTE:
please note: if you have a question, i would prefer that instead of asking the question by PM you instead send me a message containing a link to your thread and a brief description of what the problem is and i will then take a look. _ forgive me I am new here can you tell me please how to do this link??

[pt2537]

Hi Count

dont worry about the "please note: if you have a question, i would prefer that instead of asking the question by PM you instead send me a message containing a link to your thread and a brief description of what the problem is and i will then take a look"

its part of my signature, its basically to stop people asking me to advise by private message, i much prefer any advice i give to be in the open forum, that way if i get anything wrong it can be corrected.

inthis case you dont need to worry about it

i will take a look at what they are claiming and see if there is anything i can offer by way of help

Regards
paul

[Count]

Hi Rory

Thanks very much on your reply and offer of help, very much apreciated.

I have just replied here to Paul with details of particulars.

I have to send acknowledgmat by the end of this week as it needs to be recived by the court by Monday the 26th. If I write to court telling them I want to defend it then I will have anther 14 days to prepare defence according to what it says on the form.
Do I then send the letter to the lender that Tom suggestedasking lender for proof of the debt with all of the other information regarding the sale etc.?
Do I also need to write to the court that I have written to the lender to supply me all this info as part of preparing defence??

[pt2537]

Originally Posted by sequenci

I really think you should consider a part18 request to obtain a statement of account. You might have a limitation argument for the whole debt, possibly?

totally agree Sequenci

you need all the information you can get your hands on for sure to prepare an effective defence to all or part of the claim

regards
paul

[sequenci]

• The Limitation period will run from when action could have first been brought, this usually means the time when the mortgage was ‘defaulted’, usually after two or three missed payments (usually in the terms of the contract). Where the terms of the mortgage agreement require the service of a demand for repayment, the lender’s failure to service a demand does not prevent the start of time running.

2. interest. Interest is regarded as a separate debt and the cause of action accrues on the date it becomes due for payment. A separated cause of action arises in respect of each sum of interest that accrues. In the lender’s claim, some interest may be statute barred, some recoverable.

3 With a limitation argument, the creditor has to prove they have the right to collect the debt, the burden of proof is on them! If they cannot prove they have the right they should stop chasing you.

[sequenci]

excuse my awful formatting. i wrote this in outlook before transferring it over lol.

[Count]

Hi Sequenci

Thank you very much on your reply and offer of advice and help, very much appreciated.

Lender is halifax ( BOS), I would imagine they are member of the Council of Mortgage Lenders.

As far as I can remeber I have not had any contact from them within the 6 years from the sale of the house. I am not sure whether my ex-wife had any contact from them but she remarried and divorced twice after our divorce within six years that not only that she changed her name but also moved house and i doubt that they will have had any chance to contact her.

[Count]

Originally Posted by sequenci

I really think you should consider a part18 request to obtain a statement of account. You might have a limitation argument for the whole debt, possibly?

What is part 18 please?