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Ash
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Need help in perfecting or redrafting 'Particulars of Claim'

Customer Question

Need help in perfecting or redrafting 'Particulars of Claim' drawn up with family help.
Submitted: 1 year ago.
Category: Law
Expert:  Ash replied 1 year ago.
Alex Watts :

Hello my name is ***** ***** I will help you with this.

Alex Watts :

Whilst we can not draft the POC for you I can certainly make suggestions

Alex Watts :

Could you please explain your situation a little more?

JACUSTOMER-riryh54i- :

I have drafted out the POC

JACUSTOMER-riryh54i- :

Need an experts comment and guideline to make it stronger to make

JACUSTOMER-riryh54i- :

it stonger and to the point.

JACUSTOMER-riryh54i- :

Perhaps if you could kindly review what has been prepared

JACUSTOMER-riryh54i- :

Hello Alex

JACUSTOMER-riryh54i- :

I can either Copy the drafted document on to this chat line or send you the file to review and comment

JACUSTOMER-riryh54i- :

Hello Alex , Please let me know when you are available

Attachment: 2015-02-25_103755_poc.flavia15_bank_of_scot.docx

Full Size Image

JACUSTOMER-riryh54i- :

Drafted version attached FYI and assistance please.

JACUSTOMER-riryh54i- :

I have to run to an appointment howver please SMS or call on My Cell No is 0777(###) ###-#### ***** I will return to my desk ASap Richard Fernandes

JACUSTOMER-riryh54i- :

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION Claim No:

Between:

MRS FLAVIA FERNANDES Claimant

-and-

BANK OF SCOTLAND

t/a BIRMINGHAM MIDSHIRES Defendants

_________________________

PARTICULARS OF CLAIM

1. At all relevant times the Claimant was the mortgagor and the Defendants were the mortgagee in respect of the purchase and sale of the property known as Flat 520, Omega Building, Smuggler’s Way, Wandsworth, London SW10 (hereinafter “the property”).

2. On or around the 12/03/2004 the Claimant purchased the property on a “buy-to-let” mortgage advanced to the Claimant by the Defendant in the sum of £397,800. The property was purchased by the Claimant on the basis of the Defendants’ surveyor’s report which report valued the property at £468,000 at the time.

3. In truth the said surveyor’s report overvalued the property by the margin of around 35% and resulted in a lower rental income stream at the property than expected. In or around 2006 and by reasons of the same the Claimant defaulted on her mortgage covenants by becoming in arrears of her mortgage repayments and on or around the same time the Defendants commenced possession proceedings in the Edmonton County Court.

4. In or around the October 2007 the Defendants obtained a possession order in respect of the property, whereupon the Defendants re-entered the property as mortgagee in possession for the purpose of selling the property.

5. At all relevant times the Defendants owed the Claimant the following fiduciary duties:

(a) To act in good faith;

(b) As a mortgagee in possession to take reasonable precautions to obtain the best or proper price for the property at the date of sale.

6. The true nature of the transaction as particularized above was such as to cast doubt upon the value of the property and/or the bona fides of the Defendants as the Claimant’s mortgagee.

PARTICULARS OF BREACH OF DUTY

(a) The Defendants well-knew or ought to have known that the property was purchased at an overvalued price;

(b) The Defendants well-knew or ought to have known that the property was resold (as set out at paragraph 7 below) by the Defendants at an under-value.

7. Further or alternatively, the Defendants acted in breach of their fiduciary duties to the Claimant.

PARTICULARS OF BREACH OF DUTY

The Defendants wrongfully

(a) Instructed, relied upon and/or caused the Claimant to rely upon the Defendant’s surveyor’s which report over-valued the property by margin in the region of 35% of the property’s true market value at the time of the mortgage advance;

(b) Valued the property at the price of £468,000 at the time of purchase;

(c) Repossessed the property and resold the same in March 2009 at the sale price of £310,000;

(d) Repossessed and resold the property at an under-value.

(e) Caused a shortfall of £155,250.63 at the property in respect of the Claimant’s account as at the date of the said sale.

(f) Failed to raise any or any adequate rental income from the property for the period October 2007 to March 2009 when the Claimant occupied the same as a mortgagee in possession and/or to credit the Claimant’s account with any or any such income;

(g) Failed to advertise and or properly market the property with a view to obtaining the best or proper sale price for the property;

(h) Advertised the property as a property based in the Tooting area as opposed the Wandsworth area;

(i) Declined to accept prospective buyers proposed by the Claimant on the 05/02/2008 and the 24/03/2008 which buyers sought to buy the property at the prices of £390,000 and £410,000 respectively;

(j) Applied exorbitant and excessive administrative and/or service charges totaling 27026.98 to the Claimant’s account;

(k) Failed to recover the said shortfall from either their surveyor and/or their solicitor who acted on the purchase of the property in 2004 when the Defendants brought proceedings to recover the same said loss as against the latter third parties in 2009.

8. As a result of the matters set out above the Claimant has been put to trouble and expense and has suffered loss and damage.

PARTICULARS OF SPECIAL DAMAGE

(a) The sale of the property by the Defendant resulted in a shortfall on the Claimant’s account in the sum of £155,250.63.

(b) The Claimant incurred out-of-pocket expenses including legal fees in her failed attempt to resist the Defendants’ repossession and sale of the property amounting to £…..

9. Further, the Claimant claims interest under Section 69 of County Courts Act 1984 on the amount found to be due to the Claimant at such rate and for such period as the Court thinks fit.

10. The parties have complied with the requirements of the Practice Direction-Pre-Action Conduct.

And the Claimant claims:

(i) The said shortfall on her mortgage account of £155,250.63;

(ii) Damages;

(iii) Interest under Section 69 of County Courts Act 1984 to be assessed;

(iv) An account of all monies in respect of her mortgage;

(v) Further or other relief.

Dated this …day February 2015.

STATEMENT OF TRUTH

I believe the facts stated in this Particulars of Claim are true.

Name:

Position:

Signed:

JACUSTOMER-riryh54i- :

I have been told it is rather weak and is not good enough as a negotiating document as too much info has been provided with the POC.

JACUSTOMER-riryh54i- :

Thank you

JACUSTOMER-riryh54i- :

Hello Alex

Alex Watts :

Thank you. Who instructed the surveyor? Did you get your own survey done?

JACUSTOMER-riryh54i- :

We did

JACUSTOMER-riryh54i- :

The Lender has accepted that the Valuation were overstated and compensated us for £55K however that

Alex Watts :

But why are you not suing the surveyor?

JACUSTOMER-riryh54i- :

Witiness a Witness Statement of the Lender he acknowledged that there was a Gross Overvaluation

JACUSTOMER-riryh54i- :

We cannot sue the surveyor because he is under obligation to the lender

Alex Watts :

But you instructed the surveyor ?

JACUSTOMER-riryh54i- :

Court of Appeal rescues valuers and their insurers from claims by buy-to-let investors: Scullion overturned on appeal.


On Friday 17 June, the Court of Appeal (Neuberger MR, Gross, Etherton LJJs) handed down its decision in Scullion v Bank of Scotland t/a Colleys [2011] EWCA Civ 693. It had been held by Richard Snowden QC that a negligent valuer, instructed on behalf of the lender, owed a buy-to-let ("BTL") investor a duty of care both with respect to a capital and a rental valuation. The Court of Appeal disagreed, holding there was no such duty on the facts of the case.

Alex Watts :

You said you instructed the surveyor?

JACUSTOMER-riryh54i- :

Although we paid the valuation fee to the Mortgage Broker for the valuation fees the valuation is for and on behalf of the Lender and as shc the Valuer has a duty to the Lender

JACUSTOMER-riryh54i- :

We wrongly thought the the Valuer had a duty to us but we were wrong

Alex Watts :

So you didnt instruct a valuer direct?

JACUSTOMER-riryh54i- :

No

JACUSTOMER-riryh54i- :

Hello Allex It appears you are busy and I have to also step out for another appointment and will let you know when I return.

JACUSTOMER-riryh54i- :

However POC is urgent.

Alex Watts : I just need to consider this. I will respond shortly.
Alex Watts : so the bank instructed the valued and you replied upon that report.
Alex Watts : why did you not get your own done?
JACUSTOMER-riryh54i- :

Hello Alex

JACUSTOMER-riryh54i- :

I am back

Alex Watts : Hi
JACUSTOMER-riryh54i- :

I had no need to conduct my own valuation as this was a New Build a 3 Flat Flat - Developer St Geroge's

JACUSTOMER-riryh54i- :

My thinking at the time was that the Lender would approve my application if the Valuation Report was approved by the Lending

Alex Watts : Indeed,
Alex Watts : so you are claiming total loss?
Alex Watts : when do you need the poc as I will need to spend some time and review them?
JACUSTOMER-riryh54i- :

Loss of £155K plus damages although they have since recovered some £55K from their Conveyancing Solicitirs

JACUSTOMER-riryh54i- :

I need the POC by tomorrow morning

JACUSTOMER-riryh54i- :

Please also note I have picked some errors in the meantime.

JACUSTOMER-riryh54i- :

There has a duplication of the Heading Particulars of Breach of Duty

Alex Watts : Ok
JACUSTOMER-riryh54i- :

I also need to get the Headings Correct and use other appropriate headings such as : Negligence, Duty of Care,

Alex Watts : Ok
JACUSTOMER-riryh54i- :

I would require POC for filing by tomorrow midday latest.

JACUSTOMER-riryh54i- :

Sorry by 10am

JACUSTOMER-riryh54i- :

Please assure me that I can rely upon you otherwise I have to consider an alternative route.

JACUSTOMER-riryh54i- :

It appears we have 2 Chats Box's open

JACUSTOMER-riryh54i- :

I would appreciate your suggestions and comments by latest tomorrow AM 10am

Alex Watts :

Right what I can not do is amend and email back to you, the system wont let me

Alex Watts :

Defendant - it will be a Limited Company or PLC - you need to put this.

Alex Watts :

I would name the surveyor and if you can quote exactly what he wrote

Alex Watts :

3. You need to say how it was lower, what did he say and what was the actual value

Alex Watts :

5. I would add that it was also an implied term of the contract

Alex Watts :

6. Particularised not with a z

Alex Watts :

Breach of duty, remove word 'well' from 'well knew'

Alex Watts :

D knew or ought to have known

Alex Watts :

Breach of duty you know you have twice

Alex Watts :

h) You need to say why that caused loss advertised as Tooting

Alex Watts :

I would also add that D is in breach of contract as well, by the following:

Alex Watts :

1) Breach of contract by misrepresentation (the valuer value)

Alex Watts :

2) Breach in that they failed to act with all reasonable skill and care

Alex Watts :

Can I clarify anything for you about this today please>

JACUSTOMER-riryh54i- :

YES PLEASE

JACUSTOMER-riryh54i- :

YES please.

JACUSTOMER-riryh54i- :

I have taken certain points you have raised and revised the POC to hopefully be more effective

JACUSTOMER-riryh54i- :

Kindly please review and let me know by return

Alex Watts : Great. Can I clarify anything else for you?
JACUSTOMER-riryh54i- :

I know you have been busy multi tasking

JACUSTOMER-riryh54i- :

Please give me a moment to send revised POC

Alex Watts : can you attach it here?
Alex Watts : after you amend
JACUSTOMER-riryh54i- :

Sure

JACUSTOMER-riryh54i- :

I will

Alex Watts : Great
JACUSTOMER-riryh54i- :

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION Claim No:

Between:

MRS FLAVIA FATIMA FERNANDES Claimant

-and-

BIRMINGHAM MIDSHIRES Defendants

(a division of BANK OF SCOTLAND plc)

_________________________

PARTICULARS OF CLAIM

1. At all relevant times the Claimant was the mortgagor and the Defendants were the mortgagee in respect of the purchase and sale of the property known as Flat 520, Omega Building, Smuggler’s Way, Wandsworth, London SW10 (hereinafter “the property”).

2. On or around the 12/03/2004 the Claimant purchased the property on a “buy-to-let” mortgage advanced to the Claimant by the Defendant in the sum of £397,800. The property was purchased by the Claimant of £468,000 at the time.

3. The Defendant repossessed the property in November 2008 and hastily sold the property at an undervalue to the detriment of the Claimant’s interest.

4. The true nature of the transaction as particularised above was such as to:

- cast doubt upon the Defendants professionals and raises a question of a prima facie case of deceit and fraudulent misrepresentation, which will be registered with the appropriate authorities;

- and/or the bona fides of the Defendants as the Claimant’s mortgagee.

5. The admission of gross negligence by the Defendant’s professionals does not absolve the Defendant and by implication the Defendant is in breach of contract as well:

- Breach of contract by misrepresentation

- Breach in that they failed to act with all reasonable skill and care

6. As a result of the failure to achieve the rental stream, in or around 2006 and by reasons of the same the Claimant defaulted on her mortgage covenants by becoming in arrears of her mortgage repayments and on or around the same time the Defendants commenced possession proceedings in the Edmonton County Court.

7. At all relevant times the Defendants owed the Claimant the following fiduciary duties:

(a) To act in good faith;

(b) To exercise proper duty of care in tort

(c) As a mortgagee in possession to take reasonable precautions to obtain the best or proper price for the property at the date of sale.

8. At all relevant times, the Defendants knew or ought to have known that the property was resold by the Defendants at an under-value.

9. Further or alternatively, the Defendants acted in breach of their fiduciary duties to the Claimant.

PARTICULARS OF BREACH OF DUTY

The Defendants wrongfully

(a) Repossessed the property and hastily sold it March 2009 at the sale price of £310,000;

(b) Caused a shortfall of £155,250.63 at the property in respect of the Claimant’s account as at the date of the said sale.

(c) Failed to adequately mitigate their losses against their professionals in respect of their admitted negligence.

(d) Failed to advertise and/ or properly market the property with a view to obtaining the best or proper sale price

(e) Declined to consider or accept prospective buyers introduced by the Claimant on the 05/02/2008 and the 24/03/2008 which buyers sought to buy the property at the prices of £390,000 and £410,000 respectively;

(f) Applied exorbitant and excessive administrative fees to the Claimant’s account and failed to account to the Claimant when requested.

(g) Failed to fully disclose adequately all the information so requested.

(h) Applied for and obtained a charging order hastily without firstly establish and quantify the indebtedness.

10. As a result of the matters set out above the Claimant has been put to trouble and considerable expense and damage to her domestic relationship and health.

PARTICULARS OF SPECIAL DAMAGE

(a) The sale of the property by the Defendant resulted in a shortfall on the Claimant’s account in the sum of £155,250.63.

(b) The Claimant incurred out-of-pocket expenses including legal fees in her failed attempt to resist the Defendants’ repossession and sale of the property.

11. Further, the Claimant claims statutory interest under section 35A of the Supreme Court Act 1981 on the amount found to be due to the Claimant or at such rate and for such period as the Court think fit.

12. The parties have complied with the requirements of the Practice Direction-Pre-Action Conduct.

And the Claimant claims:

(i) Loss on undersale of property of £165,000;

(ii) Damages to be assessed by the court;

(iii) Interest under section 35A of the Supreme Court Act 1981to be assessed;

(iv) Interest incorrectly charged to the mortgage to be quantified.

(v) Further or other relief.

STATEMENT OF TRUTH

I believe the facts stated in this Particulars of Claim are true.

Name: Flavia Fatima Fernandes

Signed:

Dated: 25th February 2015.


Alex Watts : You haven't said who the surveyor is?
Alex Watts : Apart from that it is fine
Alex Watts : Can I clairfy anything else for you?
JACUSTOMER-riryh54i- :

Hello Alex

JACUSTOMER-riryh54i- :

My claim is against the Lender and not the Valuer/Surveyor.

JACUSTOMER-riryh54i- :

I have no recourse to legal action against the Banks professionals

JACUSTOMER-riryh54i- :

My claim is therefore against the Bank

Alex Watts :

Ok that is fine then. I would also issue a claim against the valuer as well if it were me

JACUSTOMER-riryh54i- :

You may have noticed that I have changed my opening paragraph accordingly.

Alex Watts :

I did

JACUSTOMER-riryh54i- :

What I need from you is to make the POC rather strong and serious in order to bring them to the negotiation table

Alex Watts :

The rules say the POC must be a concise statement of facts, which it is

Alex Watts :

There is nothing in there save for the amendments we already spoke about that I would change

Alex Watts :

You have added the two new head of claims which is all you need to do

JACUSTOMER-riryh54i- :

Otherwise they would merely disregard my claim and wait for the courts to decide which would be a high risk statergy for m to adapt

JACUSTOMER-riryh54i- :

OK. I do hope my POC will be received wth some seriousness.

JACUSTOMER-riryh54i- :

Would you know which division in the High Court -

JACUSTOMER-riryh54i- :

QueensBench or Chancery

Alex Watts :

QB

Alex Watts :

They can transfer it if they think its the wrong one

JACUSTOMER-riryh54i- :

AH1 Thanks

JACUSTOMER-riryh54i- :

because you may have notice my POC was address to the Chancery Division

JACUSTOMER-riryh54i- :

Can they? The last thing I need to do is file it in the wrong court.

Alex Watts :

Yes you can always just put in the High Court and let the Court decide

JACUSTOMER-riryh54i- :

OK! TY One more time . Have I covered all the angles regarding Breach of Duty of Care

JACUSTOMER-riryh54i- :

Under Breach of Duty - Does this cover negligence, Duty of Care, wrongful and unfair treatment of me as the cleint

Alex Watts :

Yes I think you have covered it all

JACUSTOMER-riryh54i- :

I am now preparing to print the final version of the POC and file the Claim Form N1 together with the POC . I am seeking damages in excess of £160K and leaving the section in Amount Claimed as TO BE ASSESSED

JACUSTOMER-riryh54i- :

I get nervous and worried when you say 'I THINK'

JACUSTOMER-riryh54i- :

This is my last throw of the dice !!!

Alex Watts :

Yes you have covered everything

Alex Watts :

Yes you can put value up to, like you have done

JACUSTOMER-riryh54i- :

Please, please!!! Review one more time my POC to give me the confidence and assurance I seek

JACUSTOMER-riryh54i- :

Thank you

Alex Watts :

I will do that now.

JACUSTOMER-riryh54i- :

Thank you Alex

JACUSTOMER-riryh54i- :

You will note I chose to cover the Surveyor/Valuer and Conveyancing Solicitors, ETC under the heading " YOUR PROFESSIONALS".

Alex Watts :

I have checked and its all good to go.

Alex Watts :

Yes I noticed you did that but expected you to also sue the surveyor

JACUSTOMER-riryh54i- :

Much appreciated and thank you.

Alex Watts :

Happy to help

JACUSTOMER-riryh54i- :

I have more to come after filing this.

Alex Watts :

Sure. Remember you can put future questions FOR ALEX W

Alex Watts :

I can pick those up

JACUSTOMER-riryh54i- :

I will need to quote some precedents to strengthen my negotions

JACUSTOMER-riryh54i- :

OK

JACUSTOMER-riryh54i- :

Perfect

Alex Watts :

Great. If I could ask you to rate my answer before you go today., the button should be at the bottom of the screen

Alex Watts :

If you need more help please click reply

Alex Watts :

Was all that ok?

Alex Watts :

If this answers your question could I invite you rate my answer before you leave today.


If the system won’t let you please click reply.



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