set aside heaing now a Final Charging hearing ???

[andyaddick]

Hi All,

 

I posted a while back re defending a CCJ, firstly to set aside then to defend with the limitations act. This morning I have notification that the court date has been adjourned and that the claimant, Lowells, will be requesting a "Final Charging" order, my questions are

1.can a DCC do this, do they have the power this is an unsecured debt ?

2.im sure my debt is over 6 years old, will they have to provide contary evidence or will have to provide the evidence ?

3.I was never informed of an "Interim Cliam" being made do they have to do this first ?

4.the "Final Charging" order, does this mean I have to sell my house ?

5. my hearing is with a Judge , i thought i would have a majistrate is this normal ???

 

Many many thanks in advance

Andy , up to his kneck, worried sick and s**ting himself ,,,

ps my hearing is next Friday , any buddys wellcome , b'ham courts

[reduk054]

Hi Andy, will try and help you with some of your thread...but more help should come along soon!

point 1) DCAs are increasingly going for charging orders over owned/ mortgaged properties to effectively make an unsecured debt a secured one

2) although the debt may be over 6 years old, if you have been paying/alnowledging the debt within this time frame then the statute barred rule does not apply

3) not sure....land registry should have informed you about the interim charging order, and sure that Lowells should have told you I THINK!

4) there are many reasons that you may not have to sell your house, will post a link for you to read

5) not sure!

Red

[reduk054]

This is from National Debt line....

If a creditor has a county court judgment against you ordering you to repay a debt, they may be able to apply to the court for a charging order to enforce the judgment if you do not pay.

A charging order gives the creditor security for the debt; in other words, the debt would become 'secured' like a mortgage on your house, or land.

There must be a hearing in the county court before a charging order can be made and there are several arguments you can use to try to stop an order being made.

Red

[reduk054]

National Debtline England & Wales | Debt Advice | Factsheet 15 Charging Orders In The County Court

[andyaddick]

Hi Red,

 

Many thanks for this, good news is I have NOT paid / acknowledged the debt in the last 6 years !

 

The only acknowledgment I have made is to counter the default CCJ served on me back in August. I am fighting the CCJ as I didnt recieve the paper work, hence the "Set Aside" hearing.

 

I did have a letter from the Land Registry 17th August, re a B132 Notice being placed in the Charges Register, this was requested by the Solicitor (shoosmiths) for Lowells NOT lowells themself.This letter was recd while i was in the process of requesting a re-hearing of the default CCJ, I have since requested that this be removed, no responce from either party.

 

I have NOT had anything back from either Shoosmiths or Lowells and find this "Final Charging" order confusing ,,

I am as far as I know still defending the default CCJ with a view to having it Statue Barred,,,,, :-?

 

Would I be right in thinking that Lowells / Shosmits have jumped the gun in the hope that my defence is turned down ?

 

Andy ,,, !?!?!?!?!?! help ...........

[reduk054]

Hi Andy,

From what I have read it would seem that you have a good case, but I am no expert!

It looks as though Lowells are hoping that your defence will crumble, and then they will go for the final charging order. May be worthwhile contacting the court to see if these hearings are together or separate.

Also what are you taking to court, if there is any paperwork to help you then (and please contact the court direct for advice) I think that you will need to submit copies to court and to the solicitors/defence.

I hope that this makes sense!

And I dont think that it matters as to who sent you the interim charging order notice.

Red

[reduk054]

May be worth speaking to National Debt Line direct for some advice..0808 808 4000, as they are more knowledgeable than me! When ever I have phoned them in the past they have been fantastic!

Red

[andyaddick]

Hi Red,

Thanks again, will give them a call as im getting confused, !

 

The hearings are both at the same time, I think Lowells are jumping the gun as my "Statue Barred" hasnt been decided yet.

 

I have all the letters I have sent, is this all i need as i dont have any credit agreements,,, I dont have a solicitor,,, should i get one ?

 

Cheers

 

Andy

[andyaddick]

Hi Red,

Thanks again, will give them a call as im getting confused, !

 

The hearings are both at the same time, I think Lowells are jumping the gun as my "Statue Barred" hasnt been decided yet.

 

I have all the letters I have sent, is this all i need as i dont have any credit agreements,,, I dont have a solicitor,,, should i get one ?

 

Cheers

 

Andy

[reduk054]

Andy, hope that your phone calls were productive and that you are less confused now!

Am bumping your thread up the line to see if any one else can help.

I personally do not think that you need a solicitor, but that is just my opinion. Think that you can defend yourself as your thread has made sense to me, and you will be able to tell your situation clearly to the judge/magistrate.

Who did you phone in the end, and what did they say?

Red

[andyaddick]

Hi Red,

I contacted the CCCS, they advised to apply to have the CCJ and Charging Order "set aside" on the grounds that the debt was statue barred using the N244 form. I have already requested this on the N244 but my hearing was adjourned until next friday. I have already in place a CCJ on the amount as i didnt get the paper work through the post and incured the "default CCJ", this is I think why Lowells have gone over the top as to speek and moved on with the Final Charging Order.

 

Could do with some mates next friday,, any offeres out there !!!!

 

Just hope the Judge understands what has happened, with the Default in place and me not having a hearing as of yet

 

Andy ,,,,,

[andyaddick]

Hi Red,

 

I sent the attached to the court yesterday, do you think this was a good move ?

 

Is too late for requesting the original CCA from Lowells to "prove" the debt, Im of the understanding that they have to prove that the debt isnt Statue Barred ??

 

Many thanks again

 

Andy

responcefinalclaimpost.doc

[reduk054]

Hi Andy,

Glad that you phoned and received advice from the CCCS. I am of the opinion that Lowells would have to prove that the debt was not statute barred. This could be a very interesting court case!

Shame I do not live near you.... .

I have read your letter correspondence that you sent to the court. Are you taking it in person? IF posting, make sure that it definitely gets there!!!

I am not in any way a legally qualified person, but from a layman's point of view, it all made sense! One thing i am not sure about though is whether or not it is in your favour ( or indeed if you are supposed to) to send a copy to Lowells as the claimant, as if they read the contents and decide that they will drop the case, then you will not have to go to court. Just a thought.....can understand why you have done what you have done though!

Have Lowells been in touch since?

Red

[reduk054]

Hello guests....

[sequenci]

Looks good to me. you should put the Limitations Act 1980 though.

[andyaddick]

Red / sequenci

 

thanks for your posts !

 

Im getting all my paper work ready and am planning on providing a "time line" document for the Judge to read before next friday, that when my hearing is.

 

Red, I have NOT disclosed the letter to Lowells, main reason i dont want them to be able to "counter" if they can on the day.

Nor the Solicitor or Lowells have been in touch, I sent the attached to Shoosmits but NOT to Lowells as it was stated they should be the party to contact.

 

Sequenci , I'll amend the copy I take with me for the Judge to review, fingers crossed I have all my dates right and this can be chucked out of court and the CCJ removed !!!!!

respond2shoosmithsb132.doc

[sequenci]

Well you have a GREAT chance to have it set aside

 

A) Default Judgment

 

B) A great chance of success

[Guest DEATHLORD]

Having just read your case and been in the same boat with shoosmiths are'nt they nice:wink: you will get no where with them you have to do every thing though the court.

They have to under the CPR rules set aside the judgement if you never got the papers OR there is a good reason why

Your reason time limit!! case won. oh by the why claim for all your costs I did

They dont like that

At the hearing you will have an agent acting for the solicitors who will like mine have no paper work and really not know any thing about the case, it was quite good when the D/j asked questions to which they did not know!

[Guest DEATHLORD]

Sorry Forgot To Add You Must Send A Copy By Recorded Post To Shoosmiths As They Are On Court File As Acting For Lovells.

[andyaddick]

Hi Deathlord,,, (nice tag ;-) )

 

Shoosmiths,,, cant say they are playing ball not had anything back from them since my letter back end of Aug, this is all that I have sent them , I have NOT sent my defence statement that I HAVE sent recorded to the court today.

Can you give me a quick break down of what I need to send to Shoosmiths also what kind of questions can i expect from the Judge , im in a bit of a flap about this, very nervous ! ! !!

many kind thanks

 

Andy

[Guest DEATHLORD]

Hi Andy,

Well you go into a nice office and not a court room the judge sit at the top with all the files and books and you sit one side and the agent will sit the other.

The judge will ask for your side and you tell him (OPPPPPPPs ) or HER hat you never had the papers served on you and that it is time barred becuase of x y z you have to give him or her the information as he or her can not take sides they can only act on what you say.

I would look on the sit and find the case note for time limmits and on the courts own web site for the CPR Rules and look under seting aside a county court judgement and you full into the 1 two needs.

let me know if you can't find them.

Oh by the way DO NOT TALK to the agent outside the court if they ask' say I will listen to what you have to say' as they WILL try and con you.

[Guest DEATHLORD]

sorry just seen the part YOU MUST SEND A COPY OF YOUR DEFENCE TO SHOOSMITHS send it recorded post as they tried to say they had nothing from me and I said you have heres the recpiet and this pearson signed for it does he work for you? that when the judge aske what do you know and the agent agreed nothing and therefore could not give any asnwers,

case dismissed costs award £321.70 yeSSSSSSSSSS

[andyaddick]

Deathlord ,

 

all done apart from the recorded bit, sent the above attached doc to Shoosmiths , with a copy of the N244 defence statement.

 

I'll send again today, recorded, have all the reciepts as its been sent from WORK !

 

Ive been looking up time limits and fall into the 6 years no contact from claimant soooooo should go for statue barred ,, fingers crossed

[reduk054]

Hi Andy, well done so far, keep posting for any last minute questions/advice or just moral support.

It does seem as though you have a great case on the statute barred!

Red

[andyaddick]

well , after all that the Judge says I DID rec the CCJ and agrees with the Default. I tried to contest Statue Barred , however a nice photo copy of my payments was produced from his majicians majic hat showing that i',m 3 months off the 6 years ! flip !!

 

So as we stand, interim charging order now in palce , this was to become a fianl order on the 2nd Jan 08, Lowells failed to show, Shosmiths have dropped the case, adjoured till the 20th Feb.

 

Lat week i get a latter from "Hamptons", think this is Lowells in a "legal" disguise ? saying they will accept 10K by the 30th Jan .

 

Im remortgaging and hoping to complete in the next 5 weeks whats the chances of this being adjourned again ?

 

Thanks All agian for your support and comments

 

Andy