Default Judgement Received Against Me - Next Step To Take?

[apollo18]

Re: Default Judgement Received Against Me - Next Step To Take?

As they have agreed to set aside the Judgment will be removed from your file if it has been entered. As soon as a judgment is set-aside it no longer exists.

Ok, that's good to know. I was worried as I have read a lot of bad stories about this devious firm of solicitors who are always quick off the mark to apply for forfeiture.

There is no risk that they would not send the court order to the court and apply for forfeiture (as well as me ending up with the CCJ)???

- - - Updated - - -

Can you tell us about the dispute on the insurance ?

I am just rushing out but will update with more detail on this when I get back in a few hours.

[Amethyst]

Re: Default Judgement Received Against Me - Next Step To Take?

Once you have signed it keep a copy. They have agreed to set aside. They have also confirmed receipt of your cheque.

Unless you went on to lose the case from this point you will not have a CCJ. It may get entered then removed but it will not be staying on your file.

By forfeiture you mean default judgment I think, or going to enforcement following your not having paid the judgment debt within 28 days?

[Diana M]

Re: Default Judgement Received Against Me - Next Step To Take?

I didn't stop paying the ground rent and service charge (this company ceased collecting service charges a couple of years ago and they now only collect ground rent). They used to collect ground rent twice a year but I think last year started collecting it yearly (I could not find any reference to when it should be demanded/paid in the lease, just that it should be paid when demanded). I was sent a demand for this year's GR but mistakenly only paid half of it. This is the only GR owing (though effectively the half year is up today and the next half would be due tomorrow.

Hello Apollo18,

The Freeholder should not have made this claim in the County Court in the first place. Freehold/Leasehold legal issues should be dealt with by an application to the First Tier Tribunal - Property Chamber (by either party). The FTT is part of HM Court & Tribunal Service. It's highly likely that the DJ would transfer the case to the Tribunal anyway (they almost always do especially if requested).

A county court summons was probably seen as a way of bullying you into paying money which you're entitled to dispute under Section 27A of the Landlord & Tenant Act 1985.

Your lease is a legally binding contract which a Freeholder (or a DJ) cannot overrule and it's governed by specific legislation on who can do what and how in legal terms. It's a specialist area of law which is why it was decided to pass the problem from the County Court to the Tribunal service.

You've successfully got this CCJ set-aside by consent. Well done you. If I were in your shoes I would now ask them to discontinue and make an application to the Tribunal which is the correct legal arena for this dispute. I'm surprised they don't know that, or maybe they do and they thought issuing a court summons would be a way to bully money out of you.

The good thing about the Tribunal is you can make an application under Section 20 (C) of the L & T Act which prevents the Freeholder from claiming any costs against you even if you are unsuccessful.

And better still if you lose there's nothing on public record unlike a CCJ. There will be an Order but that could only become a CCJ if the application originated in the County Court and the Claimant applied to enforce it by transferring it back to the County Court (if you follow me).

You say this county court claim only relates to Ground Rent, but in the past you have disputed service charges and the buildings insurance etc. If those disputes are not yet resolved (and they were within the last six years) then you can turn the tables and make your own application to the Tribunal to embrace all three issues.

If they haven't lawfully 'demanded' the money they're claiming (Section 146 L & T Act) then you don't owe it. Full stop.

Have a read of this for background > http://www.lease-advice.org.uk/docum..._Tribunal1.pdf

Di x

[apollo18]

Re: Default Judgement Received Against Me - Next Step To Take?

Once you have signed it keep a copy. They have agreed to set aside. They have also confirmed receipt of your cheque.

Unless you went on to lose the case from this point you will not have a CCJ. It may get entered then removed but it will not be staying on your file.

By forfeiture you mean default judgment I think, or going to enforcement following your not having paid the judgment debt within 28 days?

On the bus so apologies in advance for any typos!

The letter enclosing the order and confirming the receipt of the cheques was headed Without Prejudice so I would not be able to use any of that info to prove it would I?

I'm probably being overly sceptical but after reading lots of accounts online of how devious this firm is I'm a bit worried that if they did nothing more with the order after I returned it then I would not be able to prove they had received payment, the ccj would go on my file (it is actually already on there since the default judgement) and they would then be in a position to apply for forfeiture of my property.

If I eventually lost the case would the ccj stay on my file or would I be given the opportunity to pay the judgement amount first?

[Diana M]

Re: Default Judgement Received Against Me - Next Step To Take?

I have read a lot of bad stories about this devious firm of solicitors who are always quick off the mark to apply for forfeiture.

There is no risk that they would not send the court order to the court and apply for forfeiture

I assume you are worried about forfeiture of your lease.

First the Freeholder would have to serve you with a Section 146 Notice under the Law and Property Act 1925 setting out your breach, asking you to remedy the breach, and giving you the opportunity to remedy that breach within a reasonable period of time. To my knowledge "reasonable" has never been defined/quantified.

The Commonhold and Leasehold Reform Act 2002 made it a lot harder for a Landlord (i.e. Freeholder) to commence court proceedings specifically stating this can't be done for non-payment of "small amounts" which was defined as £350. So if you pay enough of the Ground Rent due (if it is lawfully due) to leave an outstanding debit balance of £349.99 then this solicitor who's making your life miserable can't seek forfeiture.

The new regulations also stated that forfeiture couldn't be sought if the sum due had been owing for a "small period" which was defined as three years.

I don't think you need to worry about forfeiture of your lease, but post up if you do receive a s.146 Notice.

Di x

[apollo18]

Re: Default Judgement Received Against Me - Next Step To Take?

Hello Apollo18,

The Freeholder should not have made this claim in the County Court in the first place. Freehold/Leasehold legal issues should be dealt with by an application to the First Tier Tribunal - Property Chamber (by either party). The FTT is part of HM Court & Tribunal Service. It's highly likely that the DJ would transfer the case to the Tribunal anyway (they almost always do especially if requested).

A county court summons was probably seen as a way of bullying you into paying money which you're entitled to dispute under Section 27A of the Landlord & Tenant Act 1985.

Hello Just Di, thanks for your reply. I agree, they probably hoped I would be scared into just paying it when the court papers came through. I think that is what they tried the last two times also and why they probably did not pursue the claims (this is the first time they have used a firm of solicitors though). The last time they made a claim I did request in my defence that the case be transferred to the tribunal (or LVT as it then was) but nothing came of it as they discontinued the claim.

I think I read somewhere though that the tribunal is not able to deal with costs and that those have to be dealt with by the county court. As most (about 70%) of the claim is made up of court costs and arrears charges could that be why they made the claim in the county court or should it still have been made through the tribunal?

Your lease is a legally binding contract which a Freeholder (or a DJ) cannot overrule and it's governed by specific legislation on who can do what and how in legal terms. It's a specialist area of law which is why it was decided to pass the problem from the County Court to the Tribunal service.

You've successfully got this CCJ set-aside by consent. Well done you. If I were in your shoes I would now ask them to discontinue and make an application to the Tribunal which is the correct legal arena for this dispute. I'm surprised they don't know that, or maybe they do and they thought issuing a court summons would be a way to bully money out of you.

Should I return the consent order to them before asking that they discontinue an make an application to the tribunal?

The good thing about the Tribunal is you can make an application under Section 20 (C) of the L & T Act which prevents the Freeholder from claiming any costs against you even if you are unsuccessful.

And better still if you lose there's nothing on public record unlike a CCJ. There will be an Order but that could only become a CCJ if the application originated in the County Court and the Claimant applied to enforce it by transferring it back to the County Court (if you follow me).

Is there a fee for them sending in a consent order?
The judgement is already registered on my file since the time of the default judgement - how do I go about getting that removed?

You say this county court claim only relates to Ground Rent, but in the past you have disputed service charges and the buildings insurance etc. If those disputes are not yet resolved (and they were within the last six years) then you can turn the tables and make your own application to the Tribunal to embrace all three issues.

My mistake, the claim involves buildings insurance and associated costs (which would be classed as service charges) and there is half a year ground rent outstanding (it seems I only paid half the amount at the beginning of this year so if I pay the other half today then that will take care of all the ground rent up to date).

If they haven't lawfully 'demanded' the money they're claiming (Section 146 L & T Act) then you don't owe it. Full stop.

Have a read of this for background > http://www.lease-advice.org.uk/docum..._Tribunal1.pdf

Di x

Will do, thanks.

[apollo18]

Re: Default Judgement Received Against Me - Next Step To Take?

The Commonhold and Leasehold Reform Act 2002 made it a lot harder for a Landlord (i.e. Freeholder) to commence court proceedings specifically stating this can't be done for non-payment of "small amounts" which was defined as £350. So if you pay enough of the Ground Rent due (if it is lawfully due) to leave an outstanding debit balance of £349.99 then this solicitor who's making your life miserable can't seek forfeiture.

The new regulations also stated that forfeiture couldn't be sought if the sum due had been owing for a "small period" which was defined as three years.

I don't think you need to worry about forfeiture of your lease, but post up if you do receive a s.146 Notice.

Di x

Unfortunately the amount for buildings insurance is a little under £700 [the buildings insurance was in the £200s before this company started collecting it (they came along, had the rebuilding cost revalued during the property crash from £900k to £1.7 million) and the insurance then went down to £440 two years later when we took over the right to manage and were able to get our own buildings insurance].

[Amethyst]

Re: Default Judgement Received Against Me - Next Step To Take?

The CCJ will be removed when the judgment is set aside. Once the consent order is lodged and you get confirmation from the court it has been accepted and the order that judgment is set-aside you can give the registry a call and check when it will be removed. Usually within 28 days.

Seems to have gone on a bit quick if you are still pre 28 days from judgment.

[apollo18]

Re: Default Judgement Received Against Me - Next Step To Take?

The CCJ will be removed when the judgment is set aside. Once the consent order is lodged and you get confirmation from the court it has been accepted and the order that judgment is set-aside you can give the registry a call and check when it will be removed. Usually within 28 days.

Should I send the consent order back straight away? It has a space for the claimant to sign and a space for the defendant to sign and then one space to fill in the date at the bottom - should I leave the date blank for the claimants to fill in?

On the order it states that the defendant to file and serve the defence within 14 days of the date of the order. Is this the date the claimant signs and fills in the date after I return my signed copy or will it be a separate order from the court?

Sorry if the answers are all obvious, I just want to be sure I am doing things correctly and understand it all.

[Amethyst]

Re: Default Judgement Received Against Me - Next Step To Take?

You sign the consent order and return it to the Claimant. Keep a copy.

You should put the date next to your signature. No need to fill in any of the other dates.

The 14 days is from the date of the Order. The Order will come from the court (as the court can refuse the consent order although in practice in these cases they don't) and the court will date the order.

Of course the sooner you sort out your defence the better.

Once that's done the CCJ will be removed and the case reverts to as it was pre-default judgment. So you can then have a rethink if need be. Di knows the ins and outs of the ground rent / insurance etc parts - so your defence may have to alter significantly, or take another tac.

From my side though if you have withheld payment of sums actually due and not in dispute due to a dispute with other parts then I'd say you should get those paid up, you can then defend the part you have a dispute with, if appropriate. You should defend the charges, court fees etc they have added to the claim - or negotiate a settlement with them ( eg agree to pay the ground rent/service charge that you have no dispute with, agree to negotiate on the insurance, but tell them you will not pay their court fees when the claim has been a) brought incorrectly and b) been discontinued twice after defence.

Do you actually have a break down of the amount claimed ? Could you list it please.

Do other leaseholders have similar concerns over the insurance amount?

[apollo18]

Re: Default Judgement Received Against Me - Next Step To Take?

Do you actually have a break down of the amount claimed ? Could you list it please.

The following charges are shown as unpaid on my current statement of account:

01 Jul 10 - 30 Jun 11 ____Bank/Postage Fee _____________4.95 (This was something that had never been charged previously and I disputed it as a business expense)
12 Mar 11 - 11 Mar 12 ___Insurance Admin Fee _________11.94 (This was something that had never been charged previously and I queried it)
12 Mar 11 - 11 Mar 12____Annual Insurance ___________619.73 (I queried the increased amount and disputed it as an unreasonable increase)
10 Jun 11 ______________Court Claim Admin Fee ________60.00 (1st discontinued claim)
10 Jun 11 ______________Land Registry Search Fee _____16.00
21 Jun 11 ______________HM Court Fee ________________80.00
17 Aug 12 ______________Arrears Fee __________________75.00
27 Nov 12 ______________Land Registry Search _________16.00
21 May 13 ______________Court Claim Admin Fee _______60.00 (2nd discontinued claim)
22 May 13 ______________Solicitor Cost-CPR Part 45 ____50.00
23 May 13 ______________HM Court Cost _______________30.00
21 Apr 15 _______________Arrears Fee _________________100.00
24 Jul 15 ________________Arrears Fee ________________100.00
01 Jan 16 - 31 Dec 16 ____Annual Ground Rent _________100.00 (£50 had been paid in Jan and £50 paid today)
11 Jan 16 _______________Reminder Charge _____________20.00

The total showing as owed is £1293.62 but the court claim is for £1623.62 plus fees and an incorrectly calculated interest amount adds up to a total of £2201.20


For the 1st claim they made, the following charges were shown:

23 Nov 09 ___Subletting Fee ______________________115.00 (One of the neighbours was a solicitor and disputed this subletting fee as not being allowed according
12 Mar 10 ___Notice of Intention Fee ________________23.00 to the lease. I have a copy of a letter dated 21 Apr 11 back to him agreeing they had made an error.
09 Jul 10 ____Notice of Intention Fee ________________23.50 I also wrote to them to say my solicitor had said the fee was not allowed by the lease but they did not
25 Feb 11 ___Notice of Intention Fee ________________24.00 respond and this was one of the charges they made a court claim for in Aug 2011)
20 Apr 11 ___Notice of Intention Fee ________________24.00

16 Aug 12 ___Admin Arrears Fee ___________________-23.00 (They suddenly removed the previous fees without notice or apology)
16 Aug 12 ___Admin Arrears Fee ___________________-23.50
16 Aug 12 ___Admin Arrears Fee ___________________-24.00
16 Aug 12 ___Admin Arrears Fee ___________________-24.00
17 Aug 12 ___Admin Arrears Fee ____________________75.00 (They added this amount the next day - this fee is included above in the current statement)
30 Aug 12 ___Subletting Fee ______________________-115.00

The particulars of the current claim are:

In default of the lease terms and despite demands for payment the Defendant has failed to pay the ground rent, insurance, administration charges, interest, fees and legal costs due undertake lease currently £1623.62. The Claimant claims this sum from the Defendant. The Claimant also claim interest at the rate of 8% p.a. pursuant to Section 69 of the County Courts Act 1984 on the above sum being £392.58 to date and thereafter interest at £0.30 per day until Judgement or sooner payment. Alternatively contractual interest or any interest at such rate as the Court deems fit. The Claimant will also claim further legal costs and other costs incurred until payment in full. (The contractual interest rate in the lease is 4% above Barclays base rate - currently 0.5%)

Amount claimed: £2016.20
Court Fee: ______£ 105.00
Legal rep. costs: _£ 80.00
Total: ___________£2201.20

[Amethyst]

Re: Default Judgement Received Against Me - Next Step To Take?

Blimey, they are trying it on somewhat aren't they !

The actual disputed amount is just this ? 12 Mar 11 - 11 Mar 12____Annual Insurance ___________619.73

Have you listed those amounts and disputed them in your defence?

[apollo18]

Re: Default Judgement Received Against Me - Next Step To Take?

The actual disputed amount is just this ? 12 Mar 11 - 11 Mar 12____Annual Insurance ___________619.73

Have you listed those amounts and disputed them in your defence?

Yes, the actual disputed amounts are £619.73 (insurance), £11.94 (insurance admin fee) and £4.95 (bank/postage fee) = £636.62 total.
The remaining £1593.30 of the judgement amount are court fees/arrears fees.

I didn't list the amounts and dispute them in my defence for the set aside but I did provide the last statement of account I was sent.
In my defence I said:

(1) the amount in the claim was different to the amount in the last statement of account I was provided with;
(2) I mentioned that many of the charges were court fees from two previous cases that no judge had awarded the claimant (I also mentioned that as part of the 1st case they pursued the subletting fee even though they had already conceded to a neighbour that such a fee was not allowed for in the lease - maybe not relevant to this case but I was hoping to show them in a bad light/frivolous);
(3) the claim consists of unreasonable charges not allowed for under the terms of the lease;
(4) the 8% interest had been calculated incorrectly (the sum claimed would have meant the entire amount of the claim would have been due for over 3 years);
(5) the lease allows for contractual interest of 4% above Barclays base rate which has been 0.5% since March 2009;
(6) the claimants had not replied to my queries and disputes;
(7) explained how the insurance charge had increased substantially after the claimant took over and how it has subsequently come down in later years when leaseholders were able to obtain our own insurance.

They have asked for a particularised defence now. There are only 3 service charge items, the bank/postage fee which I will argue is an expense of the claimant running their business and the insurance which I will argue is unreasonable and ask the court to determine a reasonable amount. The insurance admin fee I will argue is a business expense of obtaining the insurance premium and I will also research into commissions management agents get which should be passed on to the leaseholders but probably is not.

The other charges I will argue as in my previous defence. I assume the land registry search fees were part of the fees for bringing the previous court claims?

Any other suggestions?

[apollo18]

Re: Default Judgement Received Against Me - Next Step To Take?

On the Consent Order I am asked to sign, it says:

IT IS ORDERED THAT:-
1. ....blah, blah, blah
2. ....blah, blah, blah
3. Costs in the case

What does that mean? Does it mean I consent to the paying the claimant's costs???

[Amethyst]

Re: Default Judgement Received Against Me - Next Step To Take?

On the Consent Order I am asked to sign, it says:

IT IS ORDERED THAT:-
1. ....blah, blah, blah
2. ....blah, blah, blah
3. Costs in the case

What does that mean? Does it mean I consent to the paying the claimant's costs???

No, it means basically the party that loses overall will pay the costs of the application (ie if you won you would be entitled to your £255 back - if you lost you'd pay their solicitors costs for that part of the case )

I think, from what Di was saying, that once this is set aside, you get negotiating settlement with them on the undisputed issues - or tell them to discontinue and take it to a tribunal, if that is where the case should be? ( not my area I'm afraid, I don't know how leaseholder stuff works apologies xx)

They are not entitled to their court fees for the last two cases.