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Micah Clarke

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  1. Not at all. It's just a very stupid thing for you to say. You come across like a 14 year old.
  2. No, those ARE NOT my circumstances, and I'm not revealing to you, a stranger on the internet, what my circumstances are. This is supposed to be a help forum, and it's best when you're in that grey area of 'not knowing', not to pretend that you do know things when you don't. I think in that regard you have overstepped the mark. If you wish to help people, then help people. If you don't want to help people, please don't post on here - or certainly not on any thread I start or in response to my posts. I have not been rude to you. Thank you very much.
  3. Why would I be a law student? Surely if I were a law student, I would be consulting the law library, not an internet forum full of ordinary members of the public. Do you actually think before you post..??
  4. The issue for Magistrates is: Will or can the debtor pay? That is not an assessment of the debtor's attitude or psychology or social views, which are strictly irrelevant. If the debtor won't pay, or if the debtor could pay but hasn't, then a committal order becomes possible. The public policy point is very easy to understand. Courts don't imprison people repeatedly for the same council tax bill. That's because it would offend the policies of not using prison for punishing civil debtors and not using prison more than once for the same mischief. The first point is confirmed in case law, the second point I'm pretty confident about, but I need it confirmed, and also I need to know how else the council's ability to enforce would be restricted. If you think I'm wrong, by all means link to some cases that demonstrate this and I'll look at them. I would welcome this - that's why I came on here in the first place. But if you can't do that, then all you're doing is giving me your tuppeny's worth. Thanks, but I need a proper answer, so I will be consulting a lawyer. There is no need to be aggressive with me. I'm correcting you because you're wrong - or you appear to be wrong - in your understanding. It's not personal. If in fact you're right, and I'm wrong, it's no skin off my nose, it's not an ego thing: just show me the evidence, and I'll be happy and it'll probably help other people. I'm genuinely interested in an answer to my question. I'm not here for an argument and egos.
  5. The debtor's attitude towards council tax has nothing to do with it. It is not a public policy issue, there is no equivalency. The Magistrates are not (or are not supposed to be) engaged in some kind of retribution against the debtor for his social views or his fecklessness. The issue, in simple terms, is whether the debtor can pay but is wilfully refusing to (i.e. has the money but will not pay) or has negligently failed to (i.e. had the money but spent it on non-essentials instead without reasonable excuse). Of course, Magistrates will depart from this, but when they do, they are acting unlawfully - again, as the appellate courts have repeatedly confirmed. The simple fact is that prison can only be used in a council tax case as a last resort and only as a coercive measure, not as punishment. Case law is clear on this. Locking somebody up repeatedly for non-payment would only occur, if at all, for different council tax debts, not for the same debt. If you doubt this, then please cite just one known case where this has happened, in which the same debtor has been locked-up twice for the same debt. I may be wrong of course, but intuitively it makes no sense. Yes, there have been cases of debtors locked-up twice for council tax owed to the same council, but I have not heard of a case where a debtor is locked-up twice for the same council tax bill (a different thing). It would be against public policy, I believe, because the aim of the legislation is not to seek retribution (i.e. punishment) on the debtor. If you think it through, when the Magistrates commit a debtor to immediate custody, what they are doing is using the last card available to them. They are using custody as a way to coerce an unwilling or negligent debtor to come up with the money. This reinforces my reasoning that once the allotted term of imprisonment has been served, while the debt remains in existence on paper, the council are barred from enforcing it: a position analogous to a statute-barred consumer debt. However, I don't know this for sure, hence my question. Logically, it does make sense. During the term, the debtor can pay the debt down and remit his sentence, in effect buying himself out or at least reducing his term, but once his term is completed, the debt can no longer be enforced as the 'last card' has been played. It's curtains. My question remains unanswered. That's no problem: it looks to me like I will need to consult a barrister or solicitor who specialises in this area. Thanks anyway for your replies.
  6. I meant to add, and will here, that my understanding of how sentencing works in council tax cases is that when a debtor is imprisoned, the sentence can be remitted if payments are made. That suggests to me that the source I quoted has to be interpreted in the second way I mention, as that would be more logical: i.e. enforcement is barred once the term of imprisonment is completed. This could be the position, but I personally doubt it as that would mean people would be in and out of prison and we would be hearing about such cases - and that's a practice that the appellate courts are unlikely to allow, as it's contrary to public policy. If so, it would, at any rate, have the same effect I mention: of rendering the council tax debt unenforceable.
  7. Thanks, but I already know that the council tax debt will still exist. My question is whether it will be enforceable under those circumstances. Another way to ask the question would be: If a council tax debtor is imprisoned for non-payment, does this affect the council's legal right to enforce that debt in the future? If so, how and to what extent? I have a feeling that this is a question that might need to be put to a barrister or solicitor, or someone similar, but perhaps you or somebody else here can help? If not, it's not a problem. I can try other avenues. A source I have found on the issue stated: "Once someone has been imprisoned, the council cannot use further enforcement measures." [Note: the rules of the forum don't allow me to post links, as I am still classed as a 'new poster']. The above sentence could be interpreted one of two ways. Either: - the council cannot continue to enforce the debt during the term of imprisonment, but can resume enforcement once the debtor is released; OR, - the council cannot continue to enforce the debt once a debtor has been imprisoned (which is to say, once the term of imprisonment has been served), the effect of this being to bar the council from further enforcement of the debt. It's not quite clear from the context of the relevant passage which interpretation applies. If I only had this source, I might lean towards the first interpretation: i.e. the council can't enforce while the debtor is imprisoned, but potentially could resume enforcement once the debtor is released. However, I found a different source yesterday that covered the same point but expressed it differently and stated that while the debt itself is not waived, the council is barred from enforcement once a debtor is imprisoned - rather like a consumer debt can be statute-barred.
  8. Hello, I am having some problems with council tax. I may not need to go into the background. My question is very specific: If I am sent to prison for non-payment of council tax, will the council still be able to enforce the council tax debt after I have served the relevant sentence? If anybody knows, I would be very grateful for confirmation of the legal position. My understanding is that while the debt remains in existence on paper, enforcement is barred once the prison sentence is served, however I'm not entirely sure this is correct. I have also seen cases where a person is imprisoned for non-payment and the debt is reduced by £X amount for each day they spend in prison. I assume that is because the Magistrates order the remission as part of their prison sentence.
  9. Yes, and thanks again for your help. It's not over yet, though.... What was very amusing was the look on the judge's face. It was obvious he didn't want to dismiss it, and to be honest, I nearly cracked-up when he said, "Oh well, if you feel so strongly about it". I don't know how I kept a straight-face - you've got to see the funny side, even in a serious situation like this. It is equally obvious that neither the judge, the usher or the lay adviser are used to people standing up for themselves. It's clear the whole system is designed to cower people into submission, and it was interesting to note that whereas there must have been dozens of home-owners on that day's court list, only a handful were present. I doubt there would be half as many repossessions if people took notice of CAG and similar sites and stood-up for themselves. Yes, we should repay money that we owe, but at the same time, these institutions agreed to these deals knowing the risks they were undertaking, and in my view, we should all enforce our rights to the hilt.
  10. Hi, I posted on here a few weeks ago. This post is purely to relate my experiences, as a 'thank you' for your help. At this stage, I do not need any further advice, but I hope my 'story' is informative for others. Briefly, the background is that there were substantial mortgage arrears, which I settled in full prior to the hearing. I turned-up for the hearing, intending to apply to have the claim dismissed on that basis. The lender didn't turn-up, but faxed the court beforehand requesting an adjournment with general liberty to restore. I saw this fax the day before, and I sent my own response into court before the hearing, pointing out there was no further legal basis for the claim and so it should be dismissed. I still believe that is the correct position, but I also understand that it is common place for judges simply to adjourn generally in these circumstances, and that judges work on 'automatic pilot' in this respect. Thus, when I turned-up for the hearing, the judge refused to see me, on the basis that he had already adjourned the case in accordance with the lender's request. This is really quite outrageous behaviour, even from a judge. I protested that I had a right to a hearing, but as I have since discovered, this little trick seems to be quite commonplace. without any prompting from myself or the lender, the judge then fixed a second hearing, claiming that my fax response to the lender's solicitors had not been with the case file when he adjourned the case previously. On the strength of my fax, the judge set-aside his previous ruling, and would now decide whether to dismiss the case altogether, or re-adjourn on the same terms as before. Unfortunately, while this was happening, I missed the next mortgage payment, and the lender then faxed the judge and said that, on this basis, the claim should be re-adjourned. I duly settled the arrears. I then turned-up for the second hearing. Again, the judge refuses to see me, saying that he has already adjourned the case - this was before the scheduled hearing, and so totally unacceptable. This time I was having none of it, and made it clear to the court usher that I had paid-off the arrears, there was no legal basis for an adjournment, and I must be seen by the judge or I would be raising hell. While I was waiting, I was approached by a lay adviser who worked for a local Council-funded housing advisory service. He tried to persuade me to go along with an adjournment, saying that it would be better from a costs point-of-view. His reasoning was that if the lender had to re-issue proceedings, that would be another £700.00 in legal fees on my mortgage account. While I could certainly see his point, I just didn't see the logic in the argument as it relates to this type of situation. A lender can re-issue possession proceedings at any time, so long as there are at least two months of arrears. I t's clear that if the law requires that the case be dismissed, then it should be dismissed and the lender should be forced to go back to square one, and follow the relevant protocol. His view seemed to be that if you are two months in arrears, then lenders just issue proceedings automatically, but I know that is not necessarily the case. I couldn't accept what he was saying. However, in his defence, while I didn't agree with, or go along with, his advice, I have to say, he was very helpful and I am glad he spoke for me at the hearing. The judge was a pompous idiot. Without an interlocutor, I would have been bullied into an adjournment. However, his involvement took the sting out of the situation. It was clear that the judge was used to walking all over home-owners and he felt I was putting him out. In the end, the judge had to follow the law, and dismiss the case. It was extraordinary how ungracious he was about it - he even said, "Oh well, since you feel so strongly about it".
  11. Good question - the time limit is 15 December 2011 - the hearing was only today, and so it looks like he put this down for the standard 12 months. As I say, it's gone through on the nod, and what with my bad luck turning up late for the hearing , he's gone by the copybook and took my lateness as an opportunity to avoid seeing me. I suppose judges do what they can to avoid angry customers just like everybody else, but whether it would have, or will make, much difference at all, I'm a bit sceptical. And £75.00?? Jesus on his moped.: To be honest, the whole thing looks like one big criminal racket. They get to thieve your house, and you pay 'em in the process. thanks for your support - it's welcome advice, and it's always good to bounce these things off someone.
  12. Thanks newstarter. I'll go for it and let you know how I get on!
  13. Thanks newstarter - my concern is whether there is really any point. Without wanting to get political about this, it seems to me that the whole attitude of the people at these courts is just to do things by the script and not rock the boat. If, as I think you imply, it's normal procedure for lenders to ago for a general adjournment with liberty to restore, then I may just be seen as a naive layman flogging a dead horse. I'm also concerned about aggravating costs and exposing myself in that way. On the other hand, I guess I could argue that, if anything, it is the lender who has exposed both parties to additional costs by not discontinuing the claim when the arrears were cleared. Thanks buzby - Yes, I appreciate their real reason for this is so that they can fast-track proceedings in the future. However, in their correspondence to me, they gave lack of clearance of the payment as the basis of an adjournment rather than ending the claim now. They expressly state this in their letter to me. This is why I feel I may have some ammunition.
  14. Thanks - if I've posted to the wrong forum, then I apologise. Will someone be able to inform me where my query has been posted to, so I can pick up on any replies? Thanks again, Found it now - thanks for the PM.
  15. Hello Everyone, I'm hoping someone might be able to assist me. I was in trouble with my residential mortgage (LLoyds-TSB Bank plc). and built-up several months of arrears. Eventually, the lender issued possession proceedings. A couple of days before the hearing, I cleared the arrears in full using a CHAPS payment. I then asked the lender to discontinue the claim. The lender and the lender's solicitors said that instead they would apply to the court to adjourn the claim generally with liberty to restore. Their grounds for this are that because I only made the payment two days ago, it has not cleared. They added that they would not attend court, although I am not sure whether in the end they did - I am certainly aware that such assurances cannot be relief on. In response, I sent a fax to the court (and copied to the lender), pointing out that I oppose an adjournment because the arrears have been cleared (I sent them a CHAPS payment, not a cheque!), and I had made new payment arrangements with the lender (including a DD) going forward. I also rebutted some more minor points in the lender's Statement of Claim which are not true and which have a bearing on the situation. I actually did attend court on the morning of the hearing. Unfortunately, I got stuck in traffic on the way. I did warn the court, by ringing in advance, and I arrived about 15 minutes late. I was assured it would be OK. It's not a busy court - it's in a market town, and I was the only litigant there when I arrived. The usher seemed to be expecting me, and said that the judge had told her that there was no need for him to see me, because I have cleared the arrears and he has therefore just adjourned the case. I said I am not happy with that because I wanted the case dispensed with there and then. I do not want this hanging over me. The usher then went to see the judge again. She seemed afraid of the judge and came back and said that he would simply not be seeing me. At this point, I was quite angry inside (I didn't let it show), because, rightly or wrongly, it seemed to me that the Judge was being arrogant in that he was going by the copybook, had made up his mind, and was not willing to give me a hearing. Of course, the adjournment in some ways is a favourable outcome (better than suspended possession), but my side of this is that I have cleared the arrears in full, therefore the lender's claim has no basis. I have done my own research on this, and it would seem that I can apply for a re-listing of the case. However, not having any experience, I am unsure whether that is a reasonable way forward, or whether I would simply be wasting my time. Does anyone have any advice on whether I should apply to have the case re-listed, with a view to having the judge's decision set-aside? I would also like to know whether I should apply for an indemnity costs order. This is on the basis that the lender should have discontinued the claim, as they had received payment of the arrears, in full, at least 48 hours prior to the date of the hearing, during which period I was communicating with the lender's solicitors by e-mail. It was quite clear they had the ability to discontinue the claim, and chose instead to apply for an adjournment, despite my protestations. In addition, is there a viable complaint route with FOS? Thanks to anyone reading this who can offer constructive suggestions.
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