CCJ set aside - help and advice please?

[robcag]

Hi Spam

 

I'm a bit pee'd off now because I just typed a reply to you and lost it so I've got to do it all over again, it probably won't be the same second time around!

 

Hi Rob,

 

I'd love to get Dispatches back in MC's office just for when they open your letter.. I must admit, I wish the programme had aired before my set aside application 'cause I definitely would have tried to use it to my advantage I've got a feeling the Judge will dismiss the stuff I included about Dispatches as irrelevant (unless maybe s/he watched it ), that's why I didn't dwell on it too much, but it was too tempting not to mention it at all! but Hardcash only contacted me after I'd started the ball rolling... hopefully if I get a chance to defend I will 'amend my defence accordingly'

 

Very best of luck with this and well done for getting that mammoth application in at last! Thanks!

 

Spam.

 

A few days ago I was giving some thought as to how we might proceed if our set asides fail, and bearing in mind the stuff about starting a 'fresh action' as per the stuff in r&b's thread I came across a case law which seemed at the time that it might be relevant for us to use, but I need to back-peddle a bit and remember why!

 

The case was 'Hadley & Anor v Baxendale & Ors [1854] EWHC Exch J70 (23 February 1854)'

 

Hadley v Baxendale - Wikipedia, the free encyclopedia

 

Hadley & Anor v Baxendale & Ors [1854] EWHC Exch J70 (23 February 1854)

 

Also in the past day or so I came across these 2 posts by pt2537 which may give you some food for thought;

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/186644-can-anyone-recommend-decent.html#post2011872

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/202167-help-n244-form-please.html#post2200397

 

Cheers

Rob

[Spamalot]

Excellent researching there Rob... It seems there is definitely a back up plan with regards to those 2 posts by PT... I shall have a read of Hadley V Baxendale too and I'll also direct R&B to the above post, as he may well find it very helpful...

 

Well done. Two heads are definitely better than one!!... (except when it's the 2 headed monster of Marlin and Mortimer Clarke that is:p)

 

Spam.

[jon888999]

Subbing.

[r&b]

guys i think u have dun excellent work, im pulling on ur enthusiasm at the mom but i ll endeavour to help out when i get a bit of work stuff out the way, however im truly hoping, u wont need it .

[r&b]

hi rob/spam,

just filtering thru the links spam kindly bestowed upon me and i thought this may be of use if u had not already have seen it, should the question of correct/incorrect procedure arise, from post 13:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/202167-help-n244-form-please.html#post2200397

 

18. We have had the opportunity of considering the transcript of the proceedings before the judge. When he observed that no application had been made to extend the time limit for appealing, Mr Say, who appeared for the defendant, said that he made that application "if it is necessary". The judge told him that he could not, since such an application had to be supported by evidence. After debating this question for a while, Mr Say drew the judge's attention to CPR 3.10 which provides that:

 

"Where there has been an error of procedure such as a failure to comply with a rule or practice direction –

 

(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b) the court may make an order to remedy the error."

Mr Say submitted that the purpose of CPR 3.10 was to catch a situation like this where there had been a procedural irregularity but the justice of the case required that it should be overlooked.

19. Although the judge does not mention CPR 3.10 in his judgment, it is clear that he rejected Mr Say's submission on the basis that the requirement to file evidence in support of an application for an extension of time was in his view mandatory, and that a failure to file evidence was irremediable.

 

this is obviously about time extension but in your cases further evidence is available so u cud use this point to suit. see wot u think..

im doubtful in all honesty that this will come up at all as in all likelihood you will be up against an agency solicitor, but its best to be locked n loaded in case they have directed him to this.

[robcag]

Hi r&b

 

Excellent stuff!

 

Well worth trying to get my head around the implications of what you've posted and seeing how it might be necessary to be aware of it.

 

Thanks for that.

 

Cheers

Rob

[robcag]

Hi All

 

Just thought I'd post an update to progress with my application in opposition to the AoE application from MC/Marlin/Phoenix.

 

My application submitted to court 29/8/09.

CPR18 request to MC also 29/8/09, explained I was opposing their app, and asked for;

1. Proof of Recorded Del for service of NoA, (Note: I purposely did not ask for a copy of the NoA

);

2. DEED of Assignment;

3. Accurate 'Statement of Account'.

Received from MC a few days ago a letter asking me the nature of my application and the date I made it. I have not replied nor am I going to, they will have to read my letter again as all the answers are in it if they care to read properly.

 

They also said in reply to my 'Without Prejudice SatC' offer to withdraw their application "We can confirm that our position remains the same and we will not be withdrawing our attachment of earnings application". So they're either very confident or very stupid. We'll see about that! I know which of the options I'm backing!

 

Also enclosed was a non-descript piece of paper, by no means a 'Statement of Account', with the amounts (probably most or all - hard to tell as dates are hit and miss, some duplicated ) of the payments I have made to Restons, so they've now made the effort to investigate that little matter, even if they have hashed it up .

 

However, absolutely no reference to the account, no inclusion of charges they have added (and there have been some), and no balances of any kind! Nothing else at all included, (i.e. no Proof of Posting or DEED of Assignment , but not as if I really expected them ).

 

 

 

The reason I'm updating now is because today I received a 'General Form of Judgement or Order' from the court, dated 14 Aug 2009, so I guess MC will probably also have received their copy.

 

It's basically giving MC the opportunity to reply to my Witness Statement, and one of the things listed on it is that any written representations must be filed and served by 4:00pm on 28/8/2009, so not too long to wait!

 

However I noticed that the Claimant has now been listed as " Phoenix Recoveries (UK) Ltd 'Marlin Recoveries' ", whereas on the original app for AoE form it stated HFC Bank Ltd., so I decided to phone the court to find out what the reason for that was as I have never been informed of or had served on me by the court or MC/Phoenix any application to substitute the Claimant.

 

What I found out turned out to be quite interesting, even though I didn't manage to wheedle all the info out of the very helpful court lady. She said that a colleague had recently changed the name of the Claimant on the court file in error, and shouldn't have done so.

 

She went on to tell me that MC/Phoenix had made an application back in Feb this year to be substituted for HFC. This was not really news to me as I was told this on the phone a few weeks ago and I think I reported it further up the thread. At that time there was some uncertainty as to why Phoenix hadn't been named on the AoE claim form.

 

However, today, after looking into the file a bit more thoroughly, she came up with the explanation that although MC/Phoenix had made the subsitution application, it had been refused by the Judge because there was either insufficient or inaccurate paperwork. That was the point where I couldn't get any further details, possibly because she couldn't fathom out what the shortcomings were.

 

I told the lady I was considering making a further application regarding not being informed of the substitution of Claimant, but she then told me that would not be necessary as she had changed the name of the Claimant on the court file back to HFC Bank Ltd. and Phoenix/Marlin are not even in the picture !!

 

So it looks like things are looking up for me on that score, and in the opposite direction for MC/Phoenix Let's see how confident they are when that little lot surfaces!

 

My guess is that the Judge was aware that there was no evidence included (possibly proof of service of a NoA, or even a deed of Assignment - who knows ??) with the original change of Claimant application back in Feb.

 

Cheers

Rob

[Spamalot]

Hi Rob.

 

Oh well done!! Things are looking up for you and I hope they continue to do so..

 

Spam.

[foolishgirl]

Just picked your news up from spam, robcag - excellent!

 

Tick the days off...

[robcag]

Thanks Spam and FG

 

I think I'll write a letter to the court a bit nearer the time (so it's placed on file) re-iterating what I was told today just in case the Judge who looks at my application is not aware of the court error in making the substitution.

 

I was hoping the info (although it's only a guess at this stage) regarding the dodgy paperwork would be useful to Spam.

 

Cheers

Rob

[Spamalot]

Thanks Spam and FG

 

I think I'll write a letter to the court a bit nearer the time (so it's placed on file) re-iterating what I was told today just in case the Judge who looks at my application is not aware of the court error in making the substitution.

 

I was hoping the info (although it's only a guess at this stage) regarding the dodgy paperwork would be useful to Spam. I'm sure it will be.. I know they have problems in mine because HFC say they assigned mine to Carval Investors and I believe yours was in the same batch?

 

Cheers

Rob

 

I'm just hoping I can make it through the admission withdrawal/set aside stage then I believe I can 'whoop their ass'

 

Just got to get that opportunity!!

 

Spam.

[jon888999]

Hi All

 

They also said in reply to my 'Without Prejudice SatC' offer to withdraw their application "We can confirm that our position remains the same and we will not be withdrawing our attachment of earnings application". So they're either very confident or very stupid. We'll see about that! I know which of the options I'm backing!

 

If they are following the same pattern as they did with me, the confidence appearance is just a front to try and convince you that they will win!

They know they won't and in my case with a bit of pressure and threats they discontinued at the last minute.

Stupid no, devious yes.

[robcag]

 

I was hoping the info (although it's only a guess at this stage) regarding the dodgy paperwork would be useful to Spam. I'm sure it will be.. I know they have problems in mine because HFC say they assigned mine to Carval Investors and I believe yours was in the same batch? I've never seen anything relating directly to how my account was assigned (DoA) although I think we probably were the same batch.

 

Hi Spam

 

 

I'm just hoping I can make it through the admission withdrawal/set aside stage then I believe I can 'whoop their ass'

 

Just got to get that opportunity!! You're sounding confident enough, so I hope you succeed at that first hurdle. Hopefully you'll be up against an ill-informed, ill-equipped opponent

 

Spam.

 

Cheers

Rob

Edited August 19, 2009 by robcag
spelling

[robcag]

Hi Jon

 

 

Stupid no, devious yes.

 

But they're not very good at being devious either!

 

Cheers

Rob

[removalgm]

wish you good luck

[Spamalot]

Hi Rob..

 

It's basically giving MC the opportunity to reply to my Witness Statement, and one of the things listed on it is that any written representations must be filed and served by 4:00pm on 28/8/2009, so not too long to wait!

 

 

Any update on this??? 4pm on 28.8.09 has been and gawn...

 

 

Spam.

[robcag]

Hi Rob..

 

 

 

Any update on this??? 4pm on 28.8.09 has been and gawn...

 

 

Spam.

 

Hi Spam

 

Thanks for looking in on my thread again, and sorry I missed your post as I haven't been on here as much recently (either I spend too much time on here and other things get neglected, or it's the other way round!).

 

Well, as you said above, the deadline according to the order from the court came and went but nothing from the Terrible Trio, but then after the bank holiday weekend (on Tues 1/9/09) I received their reply. It seems they don't feel the need to comply with deadlines or matters regarding service of documents as their letter was dated 27/8/09 and posted standard 1st class RM, but I can't tell what date it was actually posted as there is no postmark because the letter was franked.

 

Included was a WS by a litigation assistant at MC, together with various 'exhibits' (7 in total).

 

Exhibits;

1. Alleged NoA (HFC to Phoenix/Marlin)

2. Corresponding alleged DoA

 

3. Alleged NoA (Phoenix/Marlin to Phoenix Potomac)

4. Corresponding alleged DoA

 

5. Copy of Notice of part admission and copy of Judgement.

 

6. Copy of MCs application for Phoenix to be substituted as claimant.

 

7. Copy of order from the court (which I referred to at post #82 above).

As you know, the 2 NoAs (1+3) were not served in accordance with the LoP Act 1925 and I consequently put them to strict proof of service in the form of postal receipts, and asked for this proof in my CPR request. Needless to say that has not been forthcoming!

 

The 2 DoAs (2+4) have several sections obscured by black felt-tip and the section where other peoples accounts would have been listed is also obviously blacked out. These are probably OK datewise etc., but I'm not sure of any other ways of how to pick holes in them. However I'm not too bothered by them as I am relying on the hopefully foolproof aspect of the NoAs not being lawfully served, and consequently the application for an AoE order being unlawful as the trio were not in effect lawful owners of the debt at the relevant time of issue of their application*.

 

In their WS MCs litigation assistant has poo-pooed my allegation (well, at least she's tried to ) that the NoAs were not lawfully served in accordance with s196(4) by relying on LoP Act s196(3), which states; "Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode ... " etc.

 

However they are obviously either trying it on, or are too thick to understand that this section [196(3)] does not apply in this case because the NoA letter would have to be left by a process server (which it obviously was not), and they then go on to say that as the letter was not returned by the Royal Mail, then the document is therefore deemed served. Err ... no ... I don't think so!

 

I will argue the above point in my response and suggest that if this (feeble argument) were possible, then there would be no need for s196(4) to be included in the Act!

 

Exhibit 6 tells me they made their application for substitution as claimant under CPR part 19.4 (which I will check to see if there were any requirements to serve me with anything regarding that).

 

Regarding Exhibit 7, they are making a point about this being proof of their entitlement to make the application for AoE, as the claimant has been named as 'Phoenix/Marlin' on this order from the court.

 

Unfortunately for them they are going to get a rude awakening as their name was substituted (temporarily) for HFC Bank Ltd by a clerical error of someone in the court office, and I have checked again with the court a few days ago to ensure that HFC have now been re-entered as the claimant.

 

This is due to their application to be substituted as claimant back in February this year failing for reasons unknown to me at the moment.

 

I'm going to start typing up my response to their reply, and possibly submit it to the court without waiting for further orders from the court just in case the Judge believes their low grade BS and thinks he has enough information.

 

Cheers

Rob

Edited September 8, 2009 by robcag
*Substituted 'application' for 'claim' (bolded)

[r&b]

hi rob,

im sure u are aware but just in case, Rhia used a barrister for her case and i believe the info gained also dealt with securitisation as welll as the need for a Deed of Assignment as opposed to the lesser Notice of Assignment with regard to ownership and proof thereof in court proceedings.

if u missed it thread is here (post 31 especially):

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/120057-cabot-test-case.html#post2417824

[robcag]

Hi All

 

I've just returned from a few days away (nothing too exciting ) and an unexpected Order from the court which has arrived in my absence, so I thought I'd better update my thread and ask for some help/opinions please!

 

The first Order posted below (from Judge 'T') arrived just before I went away (deemed served 23/9/09) which was slightly puzzling in itself, but I'm even more unsure about the second Order (from Judge 'M', deemed served 29/9/09). In Order #2, Judge 'M' seems to have disregarded what Judge 'T' said in Order #1 about listing Phoenix's substitution application at a hearing, which was then listed for Oct 16th.

 

I'm also puzzled that in Order #1, Judge 'T' seems to be suggesting that a NoA (and therefore DoA ?) is probably not required as there is already a CCJ in place. Presumably s/he is also therefore disregarding the requirements of the LoP 1925 ss 136 and 196 regarding service as a result of that view.

 

 

Order #1;

 

 

 

Order #2 deals with a total of 10 cases in one fell swoop (2 of these are mine, the other one having been discontinued by HFC/Restons in June 2008, and I'll update that thread soon with this info).

 

After reading CPR 23.9, I noticed that CPR 23.10 (1) states that "A person who was not served with a copy of the application notice before an order was made under rule 23.9, may apply to have the order set aside(GL) or varied." so presumably this is a ground for me to apply for a set aside of the Order?

 

Order #2;

 

 

 

There is also a further, slightly sinister, development regarding this account which I will start another thread on as soon as I get a moment (I'll post a link here for those interested).

 

This involves the unexplainable (by me at least!) linking of this account (ex-HFC, being dealt with by Marlin-Phoenix-MC) with my ex-Goldfish account being dealt with by Cabot.

 

Cheers

Rob

[Spamalot]

Hi Rob,

 

I can't advise as The whole business looks too complicated to me!!

 

But, as far as Goldfish/Cabot goes... If your Goldfish card was as old as mine then the original creditor was HFC... could that be the link?

 

Look forward to hearing more soon.

 

Spam.

[foolishgirl]

Looks to me like one DJ is not aware of what another DJ is ordering, robcag. Have you thought of taking both orders down to the court & collaring someone with a bit of common to see what is going on?

 

Not sure why this account/claim would be linked with any Cabot claim though.

[robcag]

Hi Spam and FG

 

Sorry about the delay in replying, but I've now started the thread linked to below about the strangely strange happenings at Cabot towers.

 

Hi Rob,

 

I can't advise as The whole business looks too complicated to me!!

 

But, as far as Goldfish/Cabot goes... If your Goldfish card was as old as mine then the original creditor was HFC... could that be the link? I don't think that's the case Spam, but in any case the account numbers give the game away!

 

Look forward to hearing more soon.

 

Spam.

 

Looks to me like one DJ is not aware of what another DJ is ordering, robcag. Have you thought of taking both orders down to the court & collaring someone with a bit of common to see what is going on?

 

Not sure why this account/claim would be linked with any Cabot claim though. all is revealed at the link below!

 

Link to the mysterious case of the Cabot bungle;

http://www.consumeractiongroup.co.uk/forum/legal-issues/223767-cabot-caught-bed-marlin.html#post2476689

 

Cheers

Rob

[robcag]

Looks to me like one DJ is not aware of what another DJ is ordering, robcag. Have you thought of taking both orders down to the court & collaring someone with a bit of common to see what is going on?

 

Not sure why this account/claim would be linked with any Cabot claim though.

 

Hi FG

 

Thanks for your comments.

 

I followed your suggestion and phoned the court a few minutes ago.

 

I pointed out that the first Order was made on 10th Sept and the second was made on 11th Sept (dates at the bottom), and they seemed to conflict (the first Judge having ordered a hearing). The lady at the court agreed and said she would send the second one back to the Judge to see if it should be revoked.

 

I also told her that another claim number of mine was on the list on Order #2 and that claim had been discontinued by the OC, so she said she would send that one back to the Judge also.

 

The trouble with all this is that I have a hearing on 16th Oct (as indicated in Order #1, so I'm now a bit concerned as to whether it will get dealt with by the Judge before that date considering the backlog at the courts and how long it takes for the court staff to type up their paperwork and send it out by 2nd class postage to us Defendants!

 

(The Orders referred to above were made by the 2 Judges on 10th and 11th Sept, were typed up on 17th and 23rd Sept respectively, and were served on me on 23rd and 29th respectively!)

 

I'm also concerned about missing the deadline for applying to set aside the order in Order #2 (which is tomorrow - and which I had started to compose in my head), but the court lady said it would not be necessary in the circumstances. I just hope that by not going ahead with 2 set asides (1 for each claim number) it won't come back and bite me on the bum!

 

It all seems a bit of a shambles to me!

 

I'll be back for some more advice on how to argue my case at the hearing on the 16th Oct in light of the fact that Judge has said in his/her comments that it seems likely that a NoA is not necessary!

 

Cheers

Rob

[foolishgirl]

 

(The Orders referred to above were made by the 2 Judges on 10th and 11th Sept, were typed up on 17th and 23rd Sept respectively, and were served on me on 23rd and 29th respectively!)

 

OMG

 

I'm also concerned about missing the deadline for applying to set aside the order in Order #2 (which is tomorrow - and which I had started to compose in my head), but the court lady said it would not be necessary in the circumstances. I just hope that by not going ahead with 2 set asides (1 for each claim number) it won't come back and bite me on the bum!

 

Confirm the conversations by fax

 

It all seems a bit of a shambles to me!

 

Too true - glad I'm not in your bit of the country

 

I'll be back for some more advice on how to argue my case at the hearing on the 16th Oct in light of the fact that Judge has said in his/her comments that it seems likely that a NoA is not necessary!

 

Your thread is on my subscribed so I'll keep peeping..

 

FG

[robcag]

Confirm the conversations by fax

FG

 

In the absence of a fax machine I've written a letter for each HFC account (and asked for them to be added to the corresponding case files) detailing the phone conversation and the reason why each of the 2 HFC accounts should not be subject to the later Order of the 2, and posted them Rec Del to the court.

 

Cheers

Rob