Urgent - Help Req Plz! RBS CCJ / Charging Order - Hearing 12th Dec 07

[sierra28]

Correction :

 

The judge has asked the hearing go ahead and said they will hear the apllication to set aside and the judgment and charging order together.

 

Many thanks

[stan5131]

I am just reading through the thread to refresh my memory. Back in a mo.

[stan5131]

Ok. it may be that the judge feels that this case has dragged on long enough and being fair to the claimant has decided to push ahead with the hearing. Remember, he has not refused your application, but is hearing it tomorrow.

 

I think it is pointless at this stage to not admit part of the debt. Your whole defence is centered around deducting unlawful charges and PPI etc. You have in essence already admitted to part of the debt.

 

I have found that 90% of judges are human and compassionate. I know not impossible, but i think it extremely unlikely that after having considered all the circumstances that the judge would grant an order for this amount knowing that unlawful charges and mis sold ppi are included. You need to humbly present your case and all the facts. You need to show the judge that you are in no way attempting to evade any lawfully owed debt. You can substantiate this by showing evidence of your monthly payments.

 

Also I feel the claimant to be vexatious in bringing about this claim when you have kept up to your agreed monthly payments. Once the charges and ppi are removed, I think £150 per month is more than adequate in clearing this debt. Remember, usually a charging order is granted as a last resort! You have been making substantial monthly payments. The claimants in my opinion are abusing the process. Hopefully the judge will see it this way too.

 

You already have all the information at your fingertips. Reading through your papers, the judge may have decided that you dont really need more time for preparation.

 

I really dont think all is lost yet. Make three copies of everything. One for yourself, one for the claimant, and one for the judge. Number all the pages and make a front header page of bullet points and page numbers they refer to.

 

I will be keeping my fingers crossed for you.

 

 

Stan

[Guest ChloeJane]

Stan is right. I just got your message.

 

You need to take in all that you have in the way of PPI mis sold information, the bundles and information suggested are on the PPI link. You need to take in the information about unlawful charges.

 

Take copies of all letters you have ever written them, such as what is stated in your witness statement. It helps when you put it all together to on your copy of your witness statement, to write next to it the page references.

 

Your arguement is really clear. You can be confident and you know your case inside out, the other side do not and it will show.

 

I realise it is very nervewracking. All that you need to do is look at it the way the court does. It is all about a good arguement. People here see your arguement and understood so will a judge, you just need to make sure your supporting documents for your arguement are done.

 

If you are nervous, a skeleton arguement always helps to keep you on focus for what you are argueing and reminds you of the points you want the judge to know. If you want help with it, post back. Can you post up your defence document?

[sierra28]

Ok thanks. So yes please I would like some help with skeleton. What defence document. All I have is the document we have worked on. I did not get as far as a defence document last time all I had were my letters to RBS and my statment.

[sierra28]

Can someone post the link to the PPI bundles. I can find the bank charges one but not PPI. Do I need both?

[stan5131]

Section 1: The Charging Orders Act 1979:

 

Where, under a judgment or order of the High Court or a county court, a person (the “debtor”) is required to pay a sum of money to another person (the “creditor”) then, for the purpose of enforcing that judgment or order, the appropriate court may make an order in accordance with the provisions of this Act imposing on any such property of the debtor as may be specified in the order a charge for securing the payment of any money due or to become due under the judgment or order.

 

If there is an instalment order in place, a creditor would not be able to apply for a Charging Order.

 

Section 86(1) The County Courts Act 1984:

 

Where the court has made an order for payment of any sum of money by instalments, execution on the order shall not be issued until after default in payment of some instalment according to the order.

 

This was further considered in the case of Mercantile Credit V Ellis in The Court of Appeal 1987. It was found that the wording of the Charging Orders Act states quite clearly that no further action could be taken without a default in payment. It should be noted, however, that in the case of Ropaigealach V Allied Irish Bank CA Nov 2001 where an instalment order is made AFTER an interim charging order has been made, a court has the jurisdiction to make a Charging Order final.

[sierra28]

Judgment was given in default and to be paid forthwith. I made own arangement with RBS for £150pm. so I am in effect in default on the judgment

[Guest ChloeJane]

Sierrra hun,

 

Can you please let me view the original claim if you have it and the claim for Judgment? This is important. Is it possible???The document we worked on is a witness statement, which is fine but we could still try and wangle a full defence on all matters. I am home all day today so can work on it. I can make it fit well to the witness statement but need to understand the original claim.

 

Will watch out for your replies and lets see what we can do before tomorrow!

[caro]

There are a few new stickies in the PPI forum which should help you. They're so new I haven't even had a chance to look at them myself, but I know there has been a lot of work going on recently behind the scenes to help with PPI claims, so I hope this link helps. http://www.consumeractiongroup.co.uk/forum/payment-protection-insurance-ppi/

[sierra28]

OK Chloe

 

I can send you the RBS claim form and their defence and my defence and counter claim docs. I cant find the final judgment. it is referenced in the charging order court document as ordered on March 13th for £27,510 plus £400 costs in default to be paid forthwith .

 

is that what you mean?

[sierra28]

PPI - most of the other cases were miss-sold. In my case I was sold it although unsure of the full T&Cs as no info was given to me by my bank. I was then made redundant with in the 30 day cooling of period after taking the loan. They refused to pay out. Yet the claim from my bank RBS includes the full amount and interest of the PPI. Surley I should have been able to get a refund on the PPI and interest? I do not have any of the documents relating to the insurance in time for the case tomorrow. How should I position this?

[stan5131]

You just need to clearly explain your position regarding the PPI and that in your opinion you should have either been covered or received a full refund. As you are back at work now, the ppi would only have paid during the time you were out of work. Often they are not worth the paper they are written on and you would have been lucky to have claimed on it anyway. Usually you have to be out of work for three months and there are many exclusions. I think your best option is to argue for a full refund on this.

 

What time are you in court. We will all be waiting for you update.

[sierra28]

Thanks, stan5131

 

I am in court at 10.30 am tomorrow.

[Hippy-chick]

Good luck, sierra.

 

xx

[stan5131]

Common Sierra, I have bitten all my nails off!!!!

[Guest ChloeJane]

Me too! I sent the defence document last night and he seemed really confident but waiting for the outcome....!! Sooo hope it went well.

[sierra28]

Hearing on 12th December 2007

Judge pointed out that:

• Judgment on 21st October for £17,010 is final and there was no way of reversing this judgment. Time to appeal has passed.
  
• Only possibility is Application for “Relief from Sanctions” under Civil Procedure Rules CPR 3.9 for the Court Order of 13th December 2005 - “Order is that unless defendant complies with Paragraph 3. of order on 21 October, “defence shall be struck out and claimant entitled to seek judgment for amount outstanding”

• Directions for next hearing:
  • Defendant must file Witness Statement and Evidence by 21st December 2007
    
  • At the next hearing the Court will hear evidence from Defendant to satisfy a “Relief from Sanctions”, immediately followed by Claimants application for Final Charging Order
    
  • Listing to be next available slot past 14 days.

The Judge made it clear that relief from sanctions is very very difficult.

Relief from sanctions

3.9

(1)

On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –

(a)

the interests of the administration of justice; (I think I have a good case here as it is clear that there are amounts in the judgment that should not be there and due to my personal circumstances at the time I was unable to follow the Court Order) NOTE is administration meant by will my being given relief from sanction so late on, set a president or in administering justice and stopping misjustice?

(b)

whether the application for relief has been made promptly; ( I clearly do not have a case here and have not been prompt )

©

whether the failure to comply was intentional; (It was not intentional,(proof?)why would anyone whom had tried to defend this intentionally not complete the process and fail to comply) I had every intention to comply however personal circumstances of stress, depression, duress added to by the failure by the Claimant to produce what I thought at the time were key, documents and information rendered me mentally and physically unable to deal with life’s basic activities let alone the situation and order.) (PROOF????)

(d)

whether there is a good explanation for the failure; (The only explanation I have is based on my personal circumstances at the time.) Reasons for stress, depression and duress: I had been made redundant in May 2003 and was out of work for over 1 year creating significant financial and family pressures. I was then once again made redundant in November 2005 sending me into a spiral of worry stress and depression. During the pre-trial period I was seeking new employment. I only just started a new job in December 2005 when order was made. This was a very trying period. In addition my father was taken very ill in April 2002 and in October 2005 his condition deteriorated causing significant additional family duress and pressures. Additionally the claimant was not forth coming with requests for key information, they reference this in their witness statement of their inability to deal with my requests at branch level. The total sum of this mid-life crisis left me in a terrible condition and not of the ability to deal with everything properly resulting in my unintentional failure to comply with the order. )

(e)

the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol (GL) ; (The other orders at the time also presented challenges and I on a number of occasion had to request more time)

(f)

whether the failure to comply was caused by the party or his legal representative; (Own fault) compounded by a Lack of understanding of legal process and procedure)

(g)

whether the trial date or the likely trial date can still be met if relief is granted; (YES no date has been set)

(h)

the effect which the failure to comply had on each party; and ( It unjustly resulted in a Judgment being made in default for an incorrect amount) (Claimant was given judgment in default for an amount not lawfully owed )

(i)

the effect which the granting of relief would have on each party. (The defendant would have the right to contest the unlawful part of the judgment) (the claimant would then need to prove the amounts claimed were due in a full hearing rather than be granted judgment in default)

(2)

An application for relief must be supported by evidence.

NOTE: I can’t get doctors evidence for stress/depression., I can prove my father was ill that resulted my “Power of Attorney for all his matters) and that I was made redundant twice, once being during the pre-trial period. I can prove the claimant did not supply full details as requested as per their own witness statement. I can prove by the fact I did not comply with the order given the clear case to reduce the sums that I was not in a fit state of mind and condition to deal with matters) NOTE what else should I look to prove if at all possible)

Strategy going forward:

If I fail to gain “relief from sanctions” the charging order will be heard immediately.

Based on my Witness Statement I believe I have a very small chance.

Options

• If I get relief from sanctions – Then Application for Judgment to be Set Aside will be head at a future date.
  • I will look to have the judgment revised for the lawful amounts
    
  • I will look to agree payment terms by “means” with the court, preventing a charging order in future so long as a keep up payments

  [*]If I do not get relief from sanctions.

  • Make application to vary the judgment with payment terms by “means” with the court, preventing a charging order so long as a keep up payments
    
  • Make objection and defence of the Charging Order: My defence is based on the following grounds;

i. The Claimant charged interest on the loan at an unsecured rate, so switching to a secured loan favours the creditor over others deeming the contract to hold Unlawful and unfair contractual terms.

ii. I believe the Claimants owed me a duty of care as my fiduciary and should not be allowed to benefit from their misstatement.

iii. I have shown responsibility in payments and my willingness to repay the debt, despite it having being wrongfully gained and the Claimants conduct to date.

iv. The Charging Order and Judgment contain un-due and unlawful charges.

v. The charging order and Judgment amount contains miss-sold insurance and interest on that insurance. Information held with my defence is that the Financial Services Authority have deemed single sum insurance premiums and no-refund clauses in insurance are unfair contracts by law.

vi. The Charging Order and Judgment amounts contain unlawful charges. The status of penalty charges which has been brought about by the OFT report is that I was misled by the claimants that their charges were lawful. I rightfully hold a claim against the Claimant to reclaim the unlawful charges.

1. NOTE QUESTION are iv, v, vi above no longer relevant if my relief from sanctions is not granted? Also NOTE this defence needs more detail and weight.

• If all else fails prosecute RBS for unlawful sums including
  • Payment Protection Insurance
    
  • Unlawful Default Charges and Interest
    
  • Over Draft that should have been protected

Thanks again Chloe you are a real star!!!

SO thoughts and feedback on what to do next??????

[Guest ChloeJane]

I sent you a reply hun.

 

FIGHT FIGHT FIGHT!

 

Nothing to lose to have a go for the 21st! I think we can more than build a case that will stand up and for the Judge to imply it is very very difficult is not true!

 

A solid good backing and you will stand a good chance.

 

The Judge today merely said what was known and it was a long shot but worth a try. Basically he stated the matter is ended. A fresh claim would have to be started which justifies precisely the reason you are going to go in there and fight on the 21st!!

 

Very prepared, knowing your facts inside out. So this is a minor set back in that the Judge is saying....give me very very good reason to overturn the Judgment.....or you will have to start a fresh claim against the other side.

 

Where is that spirit to fight back?????Sheez....good glass of wine and send me the Nod that your going to want to fight and you can keep me busy till Christmas instead of walking round going bah humbug because I have nothing to do with my own case for now.

 

NEVER EVER SAY DIE - UP MAN AND TRY!!! Judge gave you what you need to do.....don't lay down yet!

[stan5131]

One thing immediately springs to mind. I think you should pay a visit to your doctor. Presumably he has known you for a very long time. Explain the situation and the difficulties you were having with your father and loss of job etc. Perhaps he would be willing to write a letter giving his "opinion" of your state of mind at the time. If he is willing, this would carry more weight to your argument.

 

Anything is worth a try!

[stan5131]

Without trawling back through the thread, have you printed out relevant statements from the relevant authorities regarding single premium ppi etc?

[sierra28]

Ooo your a fighter! I am ABSOLUTLY UP FOR IT!!

With some support I am confident we can do this. As soon as I got back I looked up the CPR 3.9 and listed out the items. I then detailed what I know so far and put that in blue as above. Lets do it. Please can everyone review the CPR 3.9 comments I have made and any suggestions or case law greatly welcome. looks like Chloe and I are going for this one!

PS I did put together one mother of a trail bundle based on all the info and support from this forum, was working on it till early am and then again from 6.30am till I had to leave. The representative from RBS was shocked!"! and a little worried. He went for the CO several times and the Judge was having none of it. So you’re right not a bad day after all.... Thanks Chloe!!

[sierra28]

Hi Stan,

 

Yes I have, my PPI and default charges material is very strong based on all the info posted on this forum.

 

Thanks Stan for your support

[stan5131]

We are with you ALL THE WAY! If you dont win this, it wont be for the lack of trying lol.

 

Enough of that nonesense talk!! We ARE going to win.

[sequenci]

There are *plenty* of legal arguments that you can put forward.

 

I really think it is worth expanding on the whole unlawful charges argument by stating the case of Woodchester v Swain [COA 1998] which states that a default notice is defective if it is for the incorrect amount. So, by this token, if the default is defective the creditor should not have been able to take any further action UNTIL they have served a default notice for the correct amount AND it wasn't remedied within the prescribed time period.