service charge issues

[wadada]

Hi all,

New to the forum, so please forgive me if this post is in the wrong section.

I owe about 4k (debt plus charges) in arrears over a few years, i was disputing some of the charges on the debt and i was taken to a small claims court by the managing agent. the courts sent me a form to fill which i did over two years ago, nothing came of it.

Now a new managing agent took over about a year ago, and i agreed to pay 100 pounds monthly to clear off arrears, which they agreed. 6months down the line they want the debt cleared within a year or they are going to pass it on to debt collector agency.

Please i need advice on what to do. I offered to clear the new service charge as not to affect the arrangment on the arrears. but they want it cleared within a year at over 300 pounds a month. All correspondence to the managing agent has been over the telephone.

thanks.

[siva]

How are service charges demanded? Do the demands contain the landlord's name and an address? Did the demands include a summary of tenants' rights and obligations? Have there been any works that require a contribution of over £250?

What is it that you wanted to dispute in regard to the demands?

Have you talked to anybody about your difficulty in paying off your debt? www.nationaldebtline.co.uk, www.cccs.co.uk, citizensadvice.org.uk, www.clsdirect.org.uk

[andydd]

So do you intend to dispute any of the debt ? If no then there is little help available here other than the organisations listed above.

BUT if you believe that amounts may not be payable due to invalid demands (either not in accordance with lease or law) or that amounts are excessive or unreasonable or that you may have a counterclaim (for FH breach) then we can maybe help.

I wouldnt worry about debt collectors they have no more rights or powers than you or I, but look at lease to see what it says about legal costs for late payments, etc

Andy

[Gordon999]

The supermarket run banks ( Sainsbury or Tesco ) may offer a 5K loan repayable over 7 years. Can this be the way out for you ?

[leaseholdanswers]

Well yes understandably paying off £4 of arrears will take nearly four years. No landlord or the other contributing lessee will want to make up that shortfall in the interim.

if you have a dispute then you msut ask the county court to transfer those matters under dispute to the LVT for determination and look at raising the funds in the interim.

[andydd]

The supermarket run banks ( Sainsbury or Tesco ) may offer a 5K loan repayable over 7 years. Can this be the way out for you ?

And in certain circumstances the mortgage company could agree to add the debt to the mortgage, at perhaps quite a low rate.

Andy

[wadada]

Hi,
just been to court, was given a copy of the letter sent to the managing agent stating "no further directions given. The claim is presently struck out for non-compliance with the order".
I just got a letter from the DCA stating i have been given 7 days to pay. including in this debt is that which has been struck out.

kind regards

[siva]

Hi,
just been to court, was given a copy of the letter sent to the managing agent stating "no further directions given. The claim is presently struck out for non-compliance with the order".

Well just because the case was struck out doesn't mean you don't owe the money. It's not unusual for companies to bring a County Court claim just on the off chance that it scares the debtor into paying.

Or it could be that they just missed a deadline to submit their allocation questionnaire or something else. They can ask for the case to be reinstated or start afresh.

Did you speak to any of the advisers I listed for you? They will explain these things and will probably approach the LL to discuss the problem. However if you have already reneged on a repayment plan (not saying you have) then there is no real pressure on them to consider a new one.

There may also be a new way to dispute some of the alleged debt, depending on the details. It is possible that the Courts will now reduce demands within an accounting period for works on the premises to £250 if you weren't consulted in regard to the works. If you post details of the breakdown of the costs in each years demand the people on here will be able to advise you.

[leaseholdanswers]

Hi,
just been to court, was given a copy of the letter sent to the managing agent stating "no further directions given. The claim is presently struck out for non-compliance with the order".
I just got a letter from the DCA stating i have been given 7 days to pay. including in this debt is that which has been struck out.

kind regards

But while the claim might have been struck out, the debt still exists.. is this a "new" 7 day letter, perhaps they are starting over..

In which case its an ideal time to make the application to the LVT to challenge any items in the debt as this will buy you time and if your concerns are valid an appropriate adjustment to the amount claimed.

[andydd]

Hi. Ive already posted by views on another forum. Now whilst the debt may 'exist' it would now be impossible to enforce via the courts. I was in same situation, my FH started court action, cocked it up and it was struck out, he then tried again but this was an abuse of process, i applied and got summary judgement, the amount owing was effectively written off and my FH had made no further attempt to recover it.

Some may consider this unfair but thats life, a debt that maybe owning but technically unrecoverable is plain unrecoverable in the same way as debts that are over 6 years or even 18 months old are inrecoverable.

Imo there is no obligation for the OP to actually pay these amounts and a court/LVT would agreee.

Whilst starting an early pre empting LVT application is often advisable there are costs incurred in being the applicant that are often not recoverable, you are effectively making an application to prove you dont owe something. (Again im in same boat and have decided not tp be the first to make the LVT application on costs grounds...it goes without saying that you should be sure you have grounds not to pay)

Andy

[siva]

Hi. Ive already posted by views on another forum. Now whilst the debt may 'exist' it would now be impossible to enforce via the courts. I was in same situation, my FH started court action, cocked it up and it was struck out, he then tried again but this was an abuse of process, i applied and got summary judgement, the amount owing was effectively written off and my FH had made no further attempt to recover it.

You now have me doubting what I was told by a Judge at a hearing in regard to a money claim brought against me.

This case was stuck out and an application was made to reinstate. A hearing was arranged to see if the case was to be reinstated and I was the only party to attend. I contested the application to reinstate and the Judge struck out the application to re-instate but told me that the claimant could simply start a new claim.

I know you are not allowed to re-litigate but I would have thought this only applied if the Courts had actually made a decision, not if it was simply struck out for some procedural failure.

I wonder if the reasons for being struck out are significant? Or perhaps there needs to be a plausible excuse? Or some other difference?

[andydd]

By 're-instate' do you mean a set aside hearing ?

A party is entitled to ask that the strike out order be set aside, this is often given if you can show a good reason, in my case, it prob would of been given..but my FH's solicitor really was useless..he provided no real good excuse why he, as a quailified solicitor charging £200 ph simply forgot to pay the court fee.

I dont agree with your Judge that a party can simply 'try again', to nick a quote from my Summary Judgment "h)

Since the claim is for the same amount as before and the earlier proceedings were dealt with by a Court then the doctrine of estoppal known as res judicata applies and this action should be deemed an abuse of Court process as that described by Sir James Wigram V.-C. in Henderson v Henderson (1843) 3 Hare 100 at 114: "In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.""

The judge in my case was quite clear that the second attempt should be struck out, and as it was pre-allocation I got costs.

Now a claimant can be sneaky and if its all going wrong, he can discontinue, he can then try again IF he gets permission as per CPR 38.738.7 Discontinuance and subsequent proceedings
38.7

A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if –

(a) he discontinued the claim after the defendant filed a defence; and

(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

Its my opinion that this also applies to procedural failures, CPR 3.4 deals with this, although this actually strikes out a 'Statement of Case' and not the actual claim itself, although with no SOC how can the claim continue ?

Taylor Walton v Laing deals with these issues.

It's a principal of law across the world that you cant try and try again, although tghere have been changes to UK Criminal law regarding the Stephen Lawrence case.

The proper course of action is for the claimant to ask for set aside and then appeal, not doing this/or failing in these means a dead end, it is a cheat or abuse of process to try and shortcut the sytem and issue the same claim again.

Andy

[siva]

Perhaps my Judge was wrong. One difference might be that I had filed an embarrassed defence (sometimes called a holding defence) so that could be significant in that at that point it was not properly defended.

In my case, the application to reinstate never mentioned setting aside, nor did the notice of hearing and nor did the order that resulted after the hearing. It simply said "Application to reinstate struck out". Perhaps this is something different?

One thing I notice from your decision is that the quote used by the Judge referred to a case decision which said "the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest". That wouldn't appear to apply to a claim where the whole case was made in the first instance.

Or perhaps my Judge was thinking along the lines of CPR 38.7. That he thought the Court would allow a new claim if the claimant came up with a decent excuse for not turning up.

In the OP's case. A simple application by the claimant to re-instate may work or failing that they could discontinue the original claim and ask the Court to allow another claim. At the time of my Court Case I was reading quite a lot on another forum and getting advised and I remember that a case being struck out was not really considered 'the end'. There was something else that the defendant needed to do to be sure it was all over with. I can't remember exactly what though.

wadada, do you remember why the case was 'struck out'

[wadada]

Well just because the case was struck out doesn't mean you don't owe the money. It's not unusual for companies to bring a County Court claim just on the off chance that it scares the debtor into paying.

Or it could be that they just missed a deadline to submit their allocation questionnaire or something else. They can ask for the case to be reinstated or start afresh.

Did you speak to any of the advisers I listed for you? They will explain these things and will probably approach the LL to discuss the problem. However if you have already reneged on a repayment plan (not saying you have) then there is no real pressure on them to consider a new one.

There may also be a new way to dispute some of the alleged debt, depending on the details. It is possible that the Courts will now reduce demands within an accounting period for works on the premises to £250 if you weren't consulted in regard to the works. If you post details of the breakdown of the costs in each years demand the people on here will be able to advise you.

Thanks for your response, The amount been claimed is wrong, it includes amount that was brought before the courts, which excludes amount that has been paid by me and illegal charges. I will get a solicitor to look into this.

[wadada]

Perhaps my Judge was wrong. One difference might be that I had filed an embarrassed defence (sometimes called a holding defence) so that could be significant in that at that point it was not properly defended.

In my case, the application to reinstate never mentioned setting aside, nor did the notice of hearing and nor did the order that resulted after the hearing. It simply said "Application to reinstate struck out". Perhaps this is something different?

One thing I notice from your decision is that the quote used by the Judge referred to a case decision which said "the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest". That wouldn't appear to apply to a claim where the whole case was made in the first instance.

Or perhaps my Judge was thinking along the lines of CPR 38.7. That he thought the Court would allow a new claim if the claimant came up with a decent excuse for not turning up.

In the OP's case. A simple application by the claimant to re-instate may work or failing that they could discontinue the original claim and ask the Court to allow another claim. At the time of my Court Case I was reading quite a lot on another forum and getting advised and I remember that a case being struck out was not really considered 'the end'. There was something else that the defendant needed to do to be sure it was all over with. I can't remember exactly what though.

wadada, do you remember why the case was 'struck out'

The case was struck out on grounds of non compliance of order. this was 2010.