to cut a long story short ive followed this pages advice on my defence of shortfall claim by the halifax and im now at the stage of having the case allocated to fast track. the problem is that eversheds put their application for summary judgement in 7 days after the date specified on the order from the court, the judge accepted it was out of time and allocated the case to the fast track giving directions as to disclosure etc and giving a time slot for when the trial will take place. I duly followed the directions and requested a list of documents to help my case. in the meantime a notice of hearing came from the court and i assumed it was the actual trial date. a couple of days ago a reply to my letter requesting disclosure of docs refusing access as the summary judgement hearing was set and they would wait to see what the result was, then if directed they would then have to disclose.i rang the court to ask if it was correct and they said that it was and that eversheds had reapplied for summary judgement and the judge had changed his mind and given them a hearing.had i not phoned up the court i would know nothing about this still assuming that the trial was going ahead. how can this happen and who can help

-- jonathan king (kingy@ltblake.fsnet.co.uk), January 19, 2004

Answers

The mortgagee cannot obtain summary judgment against a mortgagor CRP 24.3(2). You need advice and should study this site more closely.

-- (smassie @onetel .co.uk), January 19, 2004.

Ignore the previous posting johnathan, a summary judgement can be granted. Your defending a shortfall claim and not a possession claim. Here is an extract from CPR.

24.3 (1) The court may give summary judgment against a claimant in any type of proceedings. (2) The court may give summary judgment against a defendant in any type of proceedings except – (a) proceedings for possession of residential premises against – (i) a mortgagor; or (ii) a tenant or a person holding over after the end of his tenancy whose occupancy is protected within the meaning of the Rent Act 1977 (2) or the Housing Act 1988(3) and; (b) proceedings for an admiralty claim in rem. (c) Revoked.

B lucky

-- Mick (micky4563@hotmail.com), January 19, 2004.

Mick

I considered the shortfall angle before making a suggestion. It is because the shortfall is a speciality debt that the mortgagee can come after you for 12 years so you can argue that as a MORTGAGOR the court should allow you to defend your claim. These are very complicated legal arguments and that is why I suggested to Johnathon that he get help. I know from experience that to do so is not easy. Nevertheless a bank has been trying to evict me from my home for 12 years and still has not achieved its goal.

-- (smassie@onetel.net. uk), January 20, 2004.

smassie. I think you are getting yourself confused, re-read the CPR.

Also a shortfall is not a Speciality Debt. The Principal Sum loaned under a Mortgage Deed etc, is a Speciality Debt and subject to 12 yr limitation period. The Interest element is a Simple Contract and subject to a 6 yr limittion period.

What Johnathan was asking was , can the Halifax obtain a Summary Judgement againat him on the shortfall claim, The answer is YES.

Blucky Mick

-- (micky4563@hotmail.com), January 20, 2004.

sorry if ive confused you but the judge gave a time limit to apply for summary judgement and eversheds missed the date set by a week. on my pointing this out to the court the judge said they were out of time and gave his directions for the fast track. eversheds then reapplied for summary judgement and the judge has given them a hearing. does anyone know if this is coorect and if so why

-- jonathan king (kingy@ltblake.fsnet.co.uk), January 20, 2004.

Jonathan, Mick and Mr Confused both seemed to have missed the point you wanted to make. I think you'll find that the courts will start to question the failings of large corporate solicitors as they intimidate litigants in person and confiscate their homes without proving the alleged debts owed to their institutional clients (with deep pockets). In the meantime however, I agree with Mr Confused you need proper independent legal advice or alternatively follow the advice on this site and issue a sarn on the lender and Eversheds.

-- (badger@field41.fsworld.co.uk), January 20, 2004.

Badger. Johnathan wanted to Know if they could get summary judgement, (YES)

-- Mick (micky4563@hotmail.com), January 20, 2004.

Mick

Change the record anyone would think that you worked for Eversheds?????!!!!! You've made your point now move on and accept that Jonathan needs to do what 1000's of others that visit this site have done and continue to do which is put the lender to strict proof of its claim.

-- (badger@field41.fsworld.co.uk), January 20, 2004.

mick & badger i need to know if eversheds can by law make a second application when their first one was out of time. also how do i put them to strict proof of claim jonathan

-- joanthan king (kingy@ltblake.fsnet.co.uk), January 21, 2004.

Jonathan, I do not know whether Eversheds can get away with not following procedure that is for the court to decide. Without knowing what went on when your home was repossessed and sold I cannot comment on the legitimacy of the judgment. However, you had 14 days to appeal the decision which obviously you did not do. Do you have grounds for defending the lender's shortfall claim? In answer to your question how do you put the lender to strict proof. Simply ask the questions when you issue your pleadings. Again you need advice. Have you been to your local Citizen's Advice Bureau?

-- (badger@field41.fsworld.co.uk), January 21, 2004.

All of the CPR must be read in the light of CPR 1, the Overriding Objective. One of the objectives relates to saving time and money.

The idea of summary judgment is to allow a case to be disposed of quickly where a defendant has no reasonable prospect of successfully defending it. This avoids the time, expense and legal costs of a full trial where a defence is bound to fail. Also, under CPR 3, which deals with the court's case management powers, the court has almost unlimited powers to extend deadlines and time limits.

The same kind of procedure applies to defendants. They can apply for a claimant's claim to be dismissed (struck out) summarily if there is no reasonable prospect of it succeeding. These decisions can be made 'ex parte' (without a hearing), although where this happens, there is an automatic right to apply to have the decision set aside.

If there is an arguable defence that has a reasonable prospect of success, summary judgment should not be given. If there is not, summary judgment will be given.

Also, just for the record, mortgage shortfall debts are not specalties. The are treated as mortgage debts, hence the 12 and 6 year limitation periods under s20(1) and s20(5) of the Limitation Act (see Bartlett v Bristol and West). If a shortfall debt was treated as a specialty, it would be 12 years for both principal and interest (s8).

All the best

Guy

-- Guy Skipwith (guy@skipwith107.freeserve.co.uk), January 21, 2004.

Guy, I agree with your posting. Except all debts are limited to 6 years unless there a mortgage exists which allows the mortgagee 12 years to seek shortfall debts for 12 years but interest for 6 years only. Nothing to say Mick?

-- (badger@field41.fsworld.co.uk), January 21, 2004.

Badger. you still cant grasp it can you.

b lucky Mick

-- Mick (micky4563@hotmail.com),), January 21, 2004.

Mick save it for someone that gives a damn!!!!!!

-- (badger@field41.fsworld.co.uk), January 22, 2004.

Hi again

I am afraid that it is not true that all debts are subject to a limitation period of 6 years.

Simple contract debts are subject to a 6-year period (s5), as are debts due under a statute (s9).

However, specialty debts (those made under seal or by way of deed) have a 12-year period (s8.1), unless the Act sets a lower period (s8 (2)). For example, a lease under seal is a specialty and rent arrears under the lease would normally be subject to a 12 year period under s8(1). However, s24 sets a 6-year period for rent arrears and this, under s8(2) displaces the 12-year period. Also, ther is no limitation period for tax debts. ALL mortgage shortfall debts come under s20 - 12 years for principal (s20(1)) and 6 years for interest (s20(5)). This was made absolutely clear by Bartlett and subsequent cases such as Thompson v Scottish Equitable.

All the best

Guy

-- (guy@skipwith107.freeserve.co.uk), January 23, 2004.

does anyone know a solicitor who can help me as the ones i have spoke to havent fought any shortfall cases

-- jonathan king (kingy@ltblake.fsnet.co.uk), January 25, 2004.