Steve,(posted 7652 days ago)You say that you have used the CML Code as a defence? Here is some info I have been given from a solicitor:
"The CML agreement should apply if the lender is a CML member and the lender didn't begin recovery action for the shortfall within the first six years following the sale of a property in possession. (subject to their exclusions) although this is no basis for defending the claim (although it could be added to any other defence that is made). However, I think that the point should be made to the creditor and to the CML at the same time, with a view to taking it to the Financial Ombudsman Service which can award compensation.
The defendant should file the acknowledgment of service (N9) indicating an intention to defend. This will then give him/her up to 28 days from the service of the claim to file a defence (N9B) or an admission with an offer (N9A)(if negotiations fail).
He/She should have received some form of 'notice before action', although if she/he didn't, it isn't a defence to the claim but only effects the costs that he/she could be held liable for. There are also issues of the premature issue of proceedings contrary to CPR 1 (overriding objective) and the Pre-action Protocol Practice Direction, although, as above, this will very rarely lead to the dismissal of a claim, rather a costs penalty on the claimant.
Other than complaining about the breach of the CML agreement, I think that the defendant needs to negotiate a settlement. It would certainly make sense to see what the defendant could borrow so he/she knows within what limits he/she can negotiate within, although he/she may find that the lender is not prepared to negotiate at this late stage.
It is particularly difficult where a claim has already been issued. The creditor must of course be able to prove the debt (full statement of a/c) and distinguish between interest and principal, but they can usually do this. Disclosure will of course get a full statement of account and the creditor could be ordered to make the interest/principal distinction.
Regarding disclosure, this is usually ordered as part of the case management directions. Where disclosure is ordered the court will set the time scale(s) that it considers appropriate, although I admit that I haven't specificially checked the CPR.
I think that he/she should immediately contact the creditor or solicitor and try to get their agreement to the action being stayed for the time being so that a full and final can be negotiated."
Steve, don't forget if you go down the settlement route to mark the letters "Without prejudice" and state that it is an offer made on an ex gratia basis, and it includes any possible tird party such as an insurance company. A few questions, when did the lender advise you of the sale price? Was your property undersold?
Hope this is of use.
Mark.