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Posts posted by chauvesouris

  1. Hi J,


    The reason you're being asked to attend the hearing is probably that they want to be sure you are honestly dealing with the debt. It might be helpful if you could give a little more information here:

    What does the new order say?

    How many payments did she make before she started missing them?

    How many did she miss?

    Have you been in contact with BH to explain the missed payments?


    Unless you can come to an agreement for a variation by consent with BH it strikes me as unlikely that you'll be able to avoid the hearing (although you may be able to get it adjourned if you can persuade them you have a good reason). My advice would be to get on to BH, apologise for missing payments, explain the situation, and commit to making the future payments; and ask them to agree to the variation you propose.


    Having said all that, the situation could be very different depending on your answers to the questions above.


    Hope that helps.

  2. You should always respond to court papers. If you ignore them they will not go away, you will simply get a default judgment against you.


    You can always defend a claim. Whether it's a good idea is a different matter - and will depend on how strong your defence is. But I would say she is not necessarily in a position to know whether she can defend or not until she's found out whether they've still got the cca (assuming this is a pre2006 agreement). And in those circumstances, she should defend (she can always settle later if all is lost).


    Once a debt has been assigned, the original owner of the debt no longer has anything to do with it. This tends to work in favour of debtors as it creates evidential problems for assignees. Your friend should write to whoever is mentioned in the notice of assignment - and ask them for a copy of the cca.


    Her defence should mention the fact that she has tried to get the original creditor to prove they had cause for action, but that they assigned the debt instead, and she is now trying to get a copy of the cca from the assignee.

  3. Setting aside a Statutory Declaration merely puts you in the position where they can't instantly petition for your bankruptcy. SDs can be set aside for various reasons - most commonly because the debt is disputed, or the creditor (where the debt is not disputed) knows full well that the debtor can afford to pay. Your old landlord shouldn't have applied for an SD if you were disputing the debt - and you should have been awarded costs on an indemnity basis because of that. In effect, all you have done so far is prove that the debt is genuinely disputed.


    However the very fact that a debt is disputed means that the courts could very well be the proper place to resolve the dispute. This is what the landlord is talking about - starting court action in the conventional way; i.e. making a claim against you - rather than just threatening you with bankruptcy. If they can persuade the court that you owe them money then they will get a judgment against you and they will be able to use the normal recovery methods to get that money from you (including issuing an SD if it comes to it).

  4. You had a court date and didn't realise that it was still on because you thought you were still in negotiation with the creditor. This might, at a push, be a good enough reason to get a set-aside. But even if it is then, as I have already said, you still have to face a full hearing. As you don't have any defence this would seem rather pointless - and will mean you will incur extra costs when you lose (which you will).


    Would I be right in thinking that your main concern is that you are unable to pay the judgment debt within 14 days? If that is the case then I think your best bet is to apply for a variation order - where the court can order that you pay the debt off in instalments rather than all at once.


    Debbbbsy: I wasn't suggesting that the claimants shouldn't follow the proper procedure - but it seems from what James has said, that they have followed the correct procedure and have left their court date (which he was aware of) open and then turned up when he defaulted again. This is all within the proper procedure. Moreover, if the proper procedure hasn't been followed then the court have to allow the set-aside (they don't have any discretion). But my point is that the set-aside is not an outcome - in this case it is, at best, a delay of the inevitable (and an increase in costs).

    • Haha 1
  5. On the basis that you haven't got any argument that you don't owe the money there wouldn't seem to be much point in applying for a set-aside as it will only lead to you being defeated in a full hearing even if initially successful.


    The only exception to this would be if Howdens were willing to settle out of court - so that, after the set-aside, they didn't then go to a full hearing. However, I can't think why they would want to do that as they've got a rock-solid judgment debt now.


    On second thoughts there is another option - if you could get the set-aside and then pay the debt back in full before the full hearing, you would avoid a CCJ against you.

  6. If you have any legal creditors, you are obliged by law to advise the OR of them. That is one of the fundamentals of bankruptcy - full disclosure of the debt.


    However, family relationships are usually carried out outside of the common law of contract etc. It would be very difficult for you to sign anything and it to have any legal weight because if it is an enforceable debt it should have been declared, and if it's not enforceable then that's that.


    I don't think it would be right for you to sign from a legal point of view.


    You also state that you are "only just" married - I take it you mean it is not a strong marriage and may end soon? In which case, the last thing on earth you should be considering is signing anything that commits you to pay anybody anything in the event of your separation/divorce (you will find that is painful and costly enough already - without adding to it).


    Of course, if you did sign anything and they later tried to rely on it, you might be able to use the defence that you signed under duress (or undue influence). Clearly you are only considering signing because of the pressure they are putting you under - there is nothing else in it for you (unless you think it will save your marriage).


    My final thought though is that, as this is family, presumably you will pay them off if you can (and they will be happy), and if you can't then it doesn't really make any difference whether they've got a note from you?

  7. This is just a set-aside hearing for the Statutory Demand isn't it? In which case, all you are trying to show is that they shouldn't have issued it - i.e. that it is about a sum of money which was (and still is) in dispute.


    The debt collectors are abusing the court process by going for a Statutory Demand when they should have started a case in the county court against you (in order to establish your liability). This is similar to the case of Re A Company (No 0012209 of 1991) [1992] 2 All ER 797 - which featured exactly the same sort of abuse of process; enough to satisfy Rules 6.5(4) b and d of the Insolvency Rules 1986 (for a set aside) and so they will be liable for costs on an indemnity basis.


    From an evidential point of view, it will be very useful if you can produce something which proves that the DCA had notice that you were disputing the debt when they issued the SD.


    I seem to remember you had a thread about this before. I still hold to my previous view that you might be liable - but that it depends on the type of organisation - if the liability of the organisation was not limited in some way then you may well be liable as a member (in much the same way as a member of a partnership is jointly and severally liable for its debts). But if they want to show you are liable then they should make their case in court (i.e. by suing you for the money, rather than going for bankruptcy).


    Good luck.

  8. If I understand this correctly, you had a default judgment (Part 12 CPR) against you four years ago. You can apply to have such a judgment set aside (Part 13 CPR) but this is usually done within days or weeks of judgment. The court will take into account the promptness of your application - and I think four years is much too long to get a Part 12 judgment set aside - especially considering that you acknowledged the fact that the judgment was made straight away.


    Even if you could get the judgment set aside, this doesn't mean you've won, it just means you get to file your defence and carry on the case from there. So you could still lose again.


    I'm not entirely clear about what your case might be though. You have said you sold the car for scrap - in which case SORN would be the wrong thing anyway - you should have sent a normal transfer notification and then the breaker should have dealt with registering the scrapping themselves. You sent a SORN so the car was still registered to you and you were still liable for it.


    So my advice is to leave things as they stand. Unless I've completely misunderstood what you've said, I don't think you've got a chance of even getting the judgment set aside, much less winning the case.


    I hope that helps... even if it's not very positive.

  9. I still maintain that you may be liable for the debt - I know it doesn't sound very fair (although it wouldn't be very fair if you could just set up an organisation, order goods and then fold the organisation without any liability - which is why banks always require some sort of security when lending to limited companies etc.).


    However, x20's point about checking whether the SD was properly served is a good one. The main point being that you can get a good idea about whether the DCA are really serious about bankrupting you.


    In terms of getting an SD set-aside, you have already told the DCA that you dispute the debt. That is enough for you to establish. Furthermore, you might want to point out to the DCA that they will be liable for costs and damages if they do continue along this tack as it is clearly an abuse of process. You are disputing the debt so they need to resolve the matter (in the county court) before they can consider petitioning for bankruptcy.

  10. I think that's a little unfair on solicitors. They are not there to make decisions for you - they should inform and advise you, but ultimately they should only do what you tell them to do. You instruct a solicitor - they don't instruct you. This appears to be exactly what has happened here - your solicitor has given you an idea of what they think you should do and then they have done what you asked.

  11. If your solicitor is a medical negligence specialist then they will be the best person to tell you what is a good result. If you're not happy with it then you really ought to raise it with them - nobody on here can give you useful advice (about likelihood of success and quantum) because there will be a very great deal of significant detail to the case.


    So I agree with IGNM; discuss it with your solicitor. Or just take the money.

  12. It is more complicated than just establishing whether you signed on behalf of an organisation. If that organisation did not have limited liability in some form (most likely by guarantee for a community organisation) then the members are likely to have joint and several liability. This would mean that any creditor could go to any member of the organisation for the debt - it is then up to the member to join other members to any action (or to sue them subsequently).


    Do you know what the status of the organisation was? Do you have any documentation about it - like a set of articles or a constitution?


    This is quite a complicated area of law and there are lots of issues around whether you ceased to be liable for debts when you ceased to be a member - mostly to do with timing, contacting creditors and getting indemnity from the remaining members.


    If it turns out that you are liable as a member of the organisation, then your best bet (and I know this isn't very nice) is to tell the debt collectors the names and addresses of as many other members as possible (preferably ones who were members when the contract was signed) - they may then be joined to any action and share any liability with you.

  13. I'm not sure what you mean by resurrecting the original claim. From what you've said, it doesn't sound as though your claim has died. If I have understood you correctly then all you have done is to write to them asking them for your money back. If that is the case then you don't have a "claim" in the legal sense - that would require you to issue proceedings.


    You can start your claim now if you like - the bank have had time to respond. Or you can wait until the OFT judgment is published. I know there are plenty of people who have views about which is the best course of action but I think there's a good argument for both (although you can't do both - you have to choose one, obviously :)).

  14. I've only just seen this so apologies for a late comment. I don't wish to pour cold water on this, but the Court of Appeal case does not answer the question of whether British Gas's conduct actually amounted to harrassment - it merely establishes that it might be harrassment but that a full hearing is needed.


    British Gas were arguing that there was simply no case to answer. The CA disagreed. But that didn't (of itself) mean Mrs F won - it just meant she could have a hearing (except that BG apparently settled rather quickly when their bullying tactics failed).


    There were lots of interesting points made in the judgment and I am encouraged by the criticisms of the defendant's position, but ultimately the only questions the judges were answering were 1. whether Mrs F had no real prospect of succeeding and 2. whether there was anything else about the case that meant it ought to go to trial. To put it another way, BG were trying to argue that no hearing was necessary because it was so obvious there was no case - the CA ruling just means that it was not obvious at all.


    On the other hand, it does mean that anybody trying to establish harrassment like this is unlikely to get their case thrown out without a full hearing. So even though it doesn't really resolve anything, it is still good news!

  15. The Consent Order is not enforceable in draft.


    The only problem with getting a Default Judgment is that they may apply to have it set aside. Whether they will be successful will depend on whether they have a real prospect of successfully defending the claim and whether they've got a good reason for not having filed a defence in time. The latter will depend on how much they've missed the deadline by, but I think the court is likely to take your actions into account. If you have been genuinely negotiating with them and have arrived at an agreement then there are two consequences:- firstly that they will say they failed to file a defence because you had reached a settlement - secondly that they are likely to be able to submit the draft order as evidence. From an independent viewpoint, if you go back on the agreement now, it will look a bit like you have pretended to negotiate with them in order to get them to default. On balance I would say the judge is likely to set aside any default judgment gained like this - the consequences of which are that the case would be back on again and they would get a new date (usually 14 days) to file their defence.


    PRO going for default: they might capitulate; it will cost them money if they do fight it; if you win, you win totally.

    CON going for default: if they fight it you will probably have a full hearing on your hands; you may have to pay the extra costs (i.e. of the set-aside hearing) if you lose; you may lose.


    To be honest, my sensible voice is saying take the money and run (even though inside I am saying "stick it to The Man"). Maybe it will help you to think of all the cost they will already have incurred - in preparing the draft order, and negotiating. They will not care about having a CCJ against them - and the costs of dragging it on could go either way.

  16. From what you've said, the problem with the name is that they didn't put "YOUR NAME trading as YOUR BUSINESS".


    From other things you've said, it doesn't sound like they've got much of a case - and it sounds like they're counting on you not defending yourself.


    If I were in your position, I would write to them and explain the situation as you have done here. Mention that, if it comes to court, you will be producing the unsigned application form, complete with the Post-It as evidence that no agreement was ever reached.


    But don't worry too much. It doesn't sound like they've got a realistic chance of success against you. Come back and let us know what their claim says when they resubmit - then you can enter your defence and ask for Summary Judgment.

  17. A Consent Order is, as the name suggests, an Order of the court. As such, it can only be made by a court. Anything that has been exchanged between you and another party will only amount to a draft order and the court will only make it an order as part of proceedings; and then, only given the consent of both parties.


    Clearly I don't know the detail of your case, but you should be aware that 2 weeks in court is a very short time. I would recommend you contact Orange and ask what is going on. I would imagine the most likely thing is that the draft order is being sent to the court for the order to be made - this may take a little while (but shouldn't take ages). The order will not be enforceable until it is made - so don't expect any payment until then. Did you agree terms in the draft order for when any payments have to be made?


    If you have really had enough then the proper thing to do would be to write to the court to tell them you no longer consent to the order - so that it doesn't all cross in the post.


    However, you can only apply for a default judgment if the defendant has failed to enter a defence or file an acknowledgement of service. I am not clear about why you are considering a Consent Order if they have failed in this respect - as you would be entitled to judgment in your favour (and it's hard to imagine how you could do better than that).

  18. Dear Dad,


    The Statek case is about the lack of a limitation period for beneficiaries of a trust against trustees - so it doesn't really have any relevance to bank charges. Much more interesting and relevant is the Kleinwort Benson v Lincoln case in the House of Lords ([1998] All ER (D) 5188)). The Lords found that the limitation period didn't start until the mistake in law became apparent (in that case it was to do with the interest rate swapping schemes between local councils and banks). This is analogous with the High Court finding that bank charges are unlawful - that will alert us to the fact that we made payments by mistake - and that is when the clock starts ticking.

  19. When the LA 1980 s32 talks about mistake, it is talking about you allowing the payments under the mistake that the money was being taken lawfully - rather than the banks taking them from you by mistake. There doesn't appear to be any argument for concealment or fraud - if it was established law that the payments were unlawful then we wouldn't be waiting for the ruling from the High Court.

  20. That would be true if it wasn't for s32 of the Limitation Act and the interpretation of that section in Kleinwort Benson v Lincoln [1998] All ER (D) 518.


    Section 32 allows for the postponement of the limitation period in case of mistake (and fraud and concealment). The period of six years doesn't start until the mistake is discovered - and in law it has not yet been discovered. When the court rules that the banks have been acting unlawfully the clock will start ticking. The House of Lords made this quite clear in their judgment - the cause of action might be extended for an indefinite amount of time.


    The idea that, by filing your claim now, you are progressing things for when judgment is handed down is, it seems to me, flawed: if we win then you won't need the court (unless there is a dispute about quantum - at which point you would start proceedings). Anybody with an ongoing case will have to contact the bank and get them to settle. If the bank refuses to settle then one will have to apply to the court for summary judgment (part 24 CPR), or wait for a full hearing. And if we lose... .


    There is some merit in the idea of trying to get the bank to agree to the amount they will give you if they lose - that might get you ahead when things start moving again.


    I suppose the argument that you had started proceedings to avoid being time-barred might be persuasive if the bank were to refuse to pay your costs.


    I still stand by my advice - there is no advantage to be gained from applying now but there is a high risk that your application fee will be wasted.

  21. Assuming the judgment goes in our favour and there is no appeal, the situation is clear: the banks will be obliged to refund any charges they have taken unlawfully. There won't be any need to go through the courts - the only time this will be necessary is if there is some disagreement about the amount you are claiming.


    If the banks appeal then the situation may become more complicated. It is not clear how the county courts will respond and it is likely that the FSA will allow the banks to keep claims like yours on hold. It isn't fair, but the FSA clearly leans towards the interests of the banks. In my case, now in Worthing, the judge has ordered that we let him know whether we've come to an agreement within 28 days of judgment in the High Court case.


    The only suggestion I could offer is that you sit tight - starting legal action at this stage could be seen as unnecessary litigation and so you would have trouble getting your costs back.

  22. The district judges would just have to carry on as if the OFT case had never happened; although the fact that the banks had dropped their charges so dramatically would certainly be prima facie evidence that they were in the wrong with their old charges.


    Of course, it's possible that the OFT might go ahead anyway - just to get the ruling on whether UTCCR applies to the charges - that would certainly make things a lot easier for us. Except that the banks would probably carry on raising bogus defences and then settling just before hearings - dragging their feet all the way.


    But then again, perhaps, if we were lucky, the DJs would start issuing special directions to the banks - and striking out defences where the directions weren't complied with.


    We have to dream.

  23. Hi Pete.


    I don't think there's any way the government can put pressure on the judges - at least that's the theory in constitutional terms; separation of powers etc. And in practice there's not a lot they can do. Obviously the judiciary have ears and the government have mouths so there's always a possibility that they might communicate, but it's not really practical at county court level.


    However, there's nothing to stop Parliament from passing emergency legislation to do something about it. However, I would say the government's strongest hand lies in talking directly to the banks. The big question is really whether the government actually cares - and I'm not sure the answer is positive.


    I was reading the HSBC Interim Report today (the one they released at the end of July and which admits that unauthorised overdraft refunds cost them $236 million in the first half of the year) and was struck by the fact that HSBC were saying quite clearly that this wasn't expected to have any material impact on the company, and that they had already provided for any future costs. They also had the nerve to say that, "the bank intends strongly to defend its position" - presumably their idea of a strong defence is to keep denying they've done anything wrong until just before it gets to court and then to pay out. I suppose it's quite a strong defence compared to, say, writing to all their customers and pointing out that they've been taking money unlawfully and that they'd like to pay it all back.


    I'll be using the report at my hearing. There is another interesting bit where they say "Proceedings are at a very early stage, and may (if appeals are pursued) take a number of years to conclude." - which is, I think, quite telling.

  24. This sounds a bit like the BBC story which was run in September;

    BBC NEWS | Business | OFT may compromise on bank case


    It's certainly possible that the OFT could just give up on the case if they thought the banks had fallen into line - the OFT only has powers to apply to the courts for injunctions stopping the banks from using unfair terms. It doesn't have any power to get our money back. In fact, in my humble opinion, that seems to be the most likely route for the banks to take - keep leading the OFT on until January and then drop their charges to a reasonable level - and then they don't have a case to answer any more and we are back to square one in terms of court action and with no High Court ruling to back us up.

  25. Ditto Jowalshy. Solicitors can't form companies - they can only form partnerships - and if you look on the bottom of the letters you can see who the partners are. So DG are not owned by HSBC at all - they are owned by Debbie and Al.

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