The Tender For Law

Volume 3

Jul 08, 2013 1:08 AM

Stuart Stone

Ok, time for a real life example:

I wrote a bill for the return of my creditor's deposit/irregular deposit of a valuable security (credit agreement pertaining to a mortgage that has since been completed) & received a letter of reply from their lawyer:

Dear Sir,

We are instructed by SSSSSSSSS (mortgage company). We have been asked to respond to your letter dated 24 June 2013, concerning account AAAAAAAAA (Account number).

On or about 30 July 2001 SSSSSSSSSSS made a loan to you of �XXXXX by way of mortgage. In consideration of the loan you promised to repay the principal amount along with interest at the agreed rate and you executed a mortgage deed in favour of SSSSSSSSS that authorised them to register a first legal charge against the property known as (property), by way of security for its loan. The mortgage deed is made out in accordance with s.52 of the Law of Property Act 1925.

As your letter explains, you repaid the loan in full on or around August 2003, discharging your liability with SSSSSSSSS, who then released its security for the loan by removing its charge against the property, at which point the relationship came to an end.

In light of the above, the position adopted in your letter dated 24 June 2013 appears ill conceived and misguided. If you should remain of the view that you have a claim against SSSSSSSSSS, then no doubt you will make such application to the courts as you deem appropriate. However, before taking such a step, we would strongly urge you to take independent legal advice.

Finally, for the avoidance of any doubt, SSSSSSSS considers its position is clear an unequivocally set out in this letter and will not enter into any further correspondence with you about this matter,

Yours faithfully, (name of legal firm)

My draft response (not sent as yet)

8 July 2013

Dear (lawyer), Re: Your Ref:

Thank you for your letter dated 4 July 2013, however there appears to be a misunderstanding.

To put it bluntly, I am confused. Who are you referring to as �you�?

The �you� that you are referring to appears to refer to an entity known as the �customer�. I am not communicating with you, or �SSSSSS� in the capacity of a customer or former customer. The �you� you are referring to is not me, nor am I to be addressed as �Mr� as it is not a title that pertains to me.

I wrote to �SSSSSSSS� in relation to the deposit of a valuable security with them, that coincided on or about the time of them creating a customer account (number AAAAAAAAAAA). In this instance, you will notice that I am acting in the capacity of a creditor who made an irregular deposit by way of a bill of exchange (hereinafter �valuable security�).

The irregular deposit of the valuable security was accepted and or deposited by �SSSSSS� and coincided on or about the time of the creation of the customer account (number AAAAAAAAAAA) as mentioned in my correspondence dated 24 June 2013. If you re-read the letter accompanying the invoice, it will become very clear. The primary reason for my referring to the account number was to give �SSSSSSS� a reference point for locating the funds that were deposited with them by me on or about 30 July 2001.

So, any reference by either you or �SSSSSS� regarding customer dealings bear no relation to me and are of no consequence. I merely wish to withdraw the funds that were deposited by way of valuable security for the sum of �XXXXX with �SSSSSS� on or about 30 July 2001.

I have provided sufficient details for �SSSSSS� to be able to locate the details of my irregular deposit and return these funds to me as directed and I will be dealing with this matter in the manner as set out in my correspondence dated 24 June 2013. I am willing to swear an affidavit to the facts, and, if �SSSSSS� wishes to acquiesce through their silence by not entering into any further correspondence as mentioned in your letter, then there will be no controversy that any court needs to address as there will be agreement between the parties. I trust that this clarifies matters for you,

Stuart Stone, Authorised Representative Non Assumpsit, All Rights Reserved

Any feedback would be greatly appreciated

Read Comments

Stuart Stone

I'm willing to see it as a typo Chad Brodgesell. They are in agreement that the matter regarding the customer is complete.

I posted this for 2 reasons: 1. To determine if they have deliberately misinterpreted the invoice & explanatory letter I sent and to show how they try & confuse the situation &/or imply there is only a customer relationship. 2. To see what else I need to do to get my point across to them, or if there are any obvious errors and or confusion in my reply.

Stuart Stone

That's pretty much my approach Eamonn O Brien. I do not comprehend the advantage of an ex parte judgement over a default judgement, or the implications:

Both default and ex parte judgments are made in the absence of at least one party involved in a case. In a default judgment, however, the judgment is made when a plaintiff in a civil suit does not respond to a lawsuit claim within a predetermined period of time. In an ex parte situation, the absent party has not chosen to be absent. Instead, ex parte proceedings are held and ex parte court orders issued when a judge decides that the presence of a party in the hearing would cause "irreparable harm" to a different party, according to an explanation from the Farlex Legal Dictionary.

Judgment

In a default judgment, the plaintiff in the relevant case requests a default judgment against a defendant because the defendant has not responded to a claim in the required length of time. If the court chooses to issue a default judgment, it decides the terms of the judgment based on the plaintiff's complaint. In the case of an ex parte hearing, the court also can issue a court order in the absence of one of the parties, but it is typically a temporary order and it does not involve the awarding of damages, as is often the case with a default judgment.

Read more: http://www.ehow.com/info_7944419_difference-default-ex-parte-judgment.html#ixzz2YS3s946w