In Court Tomorrow... set aside granted... now for defence

[29spots]

I cannot continue with my thread about this as it has disappeared. HFC are trying to put a charge on my propety as I have not paid the credit card bill, anyway they have put a CCJ on the property and I am due in court tomorrow to try and stop the final charging order happending. I have filled a N244 to set aside the orginal CCJ as I was ill at the time of the CCJ and was not thinking about anything else, also I have requested a CCA and an SAR from HFC and their sols but not received anything. Also the amount on the CCJ is over £1000 higher then the last statement from HFC I have asked them to explain why but not received anything.

 

What I would like it some help as to what I say in court tomorrow to the judge. As last time I was in court about this I just sat there and did not get a chance to say anything as HFC sols said everything.

 

The hearing for th CCJ set aside is next monday.

[tomterm8]

Hrm, can you post your n244?

[29spots]

Not able to as problems with scanner.

I have proof that I was having treatment in hospital during the time of the CCJ and on the rest of the N244 I just put that I had request the above information and not recieved anything. I have proof of sending letters. HFC sent me confirmation that they has received the letters and would get back to me in 10 days (nothing recieved).

[tomterm8]

All I need is the text... can you type out what you said?

[29spots]

"During the time of the County Court Judgement i had a miscarriage and was not able to defend the claim as this was very stressful time.

 

I believe that I have a full defence to the claimant's case in that I have requested a copy of the original agreement udner the Consumer Credit Act 1974, sections 77-79. This has not been provided. A letter has been sent to DG Solicitors on 21st December 2007 and a copy to HFC on 7th January 2008. Without a signed agreement this debt cannot be enforced therfore making the judgement invalid.

 

I also requested a breakdown of the debt as the judgement is for £6999.58 + court costs and my final statment shows taht the dbt is for £5975.57. A letter was sent on 7th January 2008 requesting this information and nothing has been received.

 

I have enclosed copies of all letters sent to HFC and DG Solicitors."

[saintly_1]

Hi can you give me the title of your 'lost' thread please

[29spots]

I think is was 'HFC are going to put a charge on my property' it was not very old.

[JonCris]

Also does their balance claimed include penalty charges - if so it should also be mentioned when you attend court that in any event you will be disputing & reclaiming them - it's called an ambush which the money lenders love to do to consumers - also if the judge chooses to ignore you it's good grounds for appeal - even if it means being firm with the judge insist you be heard don't let the court or the claimants bully you - preface you comments with "with the greatest of respect sir or madam" as the case me be.

 

Also make sure you get the name of the full name of the judge so you can confirm, via the Law Society Web Site, there is no possibility of an implied conflict of interest which there might be if they are a partner in a law firm which recovers consumer debt

[tomterm8]

Well, from what you said, I would stress that you weren't able to defend the case due to medical problems - take in a doctors note.

 

Say that you believe you owe something, but the debt is made up largely of unlawful charges ( which are being discussed in the OFT test case) AND that there is an additional £1000 that hasb;t actually been accounted for.

 

Aso, say that the court didn't consider whether a time order (under s129) was appropriate, or just considering your personal circumstances (highlight what they are).

[29spots]

Thanks Tomterm,

[29spots]

thanks JonCris, the balance does include charges that is why I asked for the SAR, last time the talked so fast and most of it went over my head.

[JonCris]

Although it's short notice see if theres a 'court buddy' available on the site to go with you

[29spots]

How do I do that?

[jowalshy]

If you click on the link below and enter your postcode, it should bring up a list of all those members that live near you. Just click on one and then you can send an email to them.

 

http://www.consumeractiongroup.co.uk/buddy.php

[29spots]

Last time I was in court DG Solicitors spoke to me before court should I speak to them again or just ignore them.

[johnnymitch]

Hi 29spots ,

 

Last time I was in court DG Solicitors spoke to me before court should I speak to them again or just ignore them.

 

 

An acknowledgement of their presence is OK - (Like 'good morning') but if you don't feel comfortable about talking then tell them you'll see them inside -

 

In court -don't be afraid to speak up - you're just as entitled to put your side as they are to put theirs - and judges are usually mindful of the fact that you are not legally trained and will help.

 

 

Have a typewritten sheet with the points you want to make on it : the points you have outlined in post no#5 might be a good place to start..............:

 

1. "During the time of the County Court Judgement i had a miscarriage and was not able to defend the claim as this was very stressful time.

 

2. I believe that I have a full defence to the claimant's case in that I have requested a copy of the original agreement udner the Consumer Credit Act 1974, sections 77-79. This has not been provided.

A letter has been sent to DG Solicitors on 21st December 2007 and a copy to HFC on 7th January 2008. Without a signed agreement this debt cannot be enforced therfore making the judgement invalid.

 

3. I also requested a breakdown of the debt as the judgement is for £6999.58 + court costs and my final statment shows taht the dbt is for £5975.57. A letter was sent on 7th January 2008 requesting this information and nothing has been received.

 

4. I have enclosed copies of all letters sent to HFC and DG Solicitors."

 

That is good advice from jonchris - if you are firm but respectful the judge will listen - he/she doesn't want the prospect of having to answer an appeal...............

 

Best of Luck

[29spots]

Thank you jonnymitch that is great advice for my hearing on next monday. My hearing today was for the charging order and this was at 10am. The Judge was very nice and did let me have my say, however I don't think I said enought but it has been delay until next week with be concluded with the N244 set aside.

 

I would like a bit of advice though, the DG Sols was not very happy that it has been delay until next week he made it quite clear to me that he was going to push for a decision to be made today. He did talk about court costs, this I am worried about as it is costing money all the time. As I am disputing the amount and HFC will not disclose the extra amount would I be responsible for the court costs or should that be HFC who pay for them.

[tomterm8]

It's variable. If you can prove them being unreasonable, there should be no court costs.

 

Most hearing costs are 200-300 a time, in my experience, and so you are looking at a total cost of £400-600 (not guaranteed, the judge can set them as he sees fit). In any case, if you were to drop out now it would cost you the same anyway.

[johnnymitch]

Sorry, I should have said that was for next week.... I was too late for today...........

 

It is usually up to the judge to decide who is liable for costs ... but I would think there is a lot more sorting out to do before that becomes a factor . I take it they have still not complied with your request for CCA or a breakdown of the debt........?

 

You've probably got a copy of this , 29spots but it may help with your argument in court.........

 

SECTION 78 (1) CONSUMER CREDIT ACT 1974

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

The Consumer Credit Act in section 78(6) States that

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement

 

(b) if the default continues for one month he commits an offence

 

For the avoidance of doubt in this court the 2006 Consumer Credit Act does not change the above legislation.

=====================================================

 

Someone else may be able to advise further on the court costs angle, 29 spots, this site is never short of advisors..............

[johnnymitch]

Ah! you see....... Tomterm8 came in while I was still editing mine. LOL!

[29spots]

Thank you jonnymitch, I did try to stress to the judge that I was still waiting for information from HFC, DG Sols said that they were not obliged to send me anything. I replied that they are under the CCA.

[Castlebest]

Hiya 29, great advice there from both Tom and Johnny, it sounds very much like the banks solicitor has been "economical" with the facts.

 

Just make sure your judge is aware of your side of the case, as Johnny said type up all the points you want to cover and take it with you, even title it skeleton argument and give a copy to the judge and the banks solicitor when you get to court .

 

pete

[JonCris]

29 Regarding the solicitors claim that they do not have to supply you with the data you require may I ask you to check the following

 

Date:

YOUR REF:

OUR REF: Special Delivery

S.A.R - (Subject Access Request) (Subject Access Request) Data Protection Act (Data Protection Act) 1998

Their Name & Address

 

 

Your Name & Address

 

 

 

Dear Madam or Sir:

RE: YOUR CLIENT

As per the Data Protection Act 1998 (Date Protection Act) I require that you supply me with any and all data in your possession which, in anyway appertains to myself including true copies of any properly executed agreements, statements of account, default notices, all internal and external correspondence, memo’s, telephone attendance notes, internal and external emails

If your client is not the original creditor please also supply a true copy of their letter of assignment or if acting on behalf of another a true copy of their predated authority to bring this action.

I enclose the statutory fee of £10 by way of a postal order and remind you that you have 40 days in which to comply

Also please note that for the avoidance of doubt and to expedite matters if you claim exemptions from the Data Protection Act under part IV section 35 I would respectfully remind you of the following:

Data Protection Act part IV section 35 (2) states "personal data is not exempt from the non-disclosure provisions" In addition Part II section 7 (legal guidance notes) "There are no exemptions from the right of access where civil legal proceedings are contemplated or ongoing"

If you should attempt to bring an action before compliance I will, after notifying the court of my Subject Access and CCA requests, ask the court for a continuance to allow time for both yours and your clients compliance

I await your responses

Yours faithfully

 

CC To all parties

 

Or you could just draw their attention to the relevant paras

[29spots]

Back in court tomorrow, this time to set aside the judgement. I would like to set aside the judgement and arrange a time order as Tomterm suggested. I still have the concern of the amounting costs as DG sols will say that I am responsible for them. I suppose that I am responsible for one days court costs but not the rest as DG Sols have not supplied me with any information that I have asked for.

 

How would I approach the court about this.

 

Also is there anything I should do to be prepared for the time order, I have done my current situation and a breakdown of income and expenses.

[29spots]

I have to leave for court at 1 o'clock so any advise would be very helpful and much appreciated