County Court Judgements - charges and fees

[pauli]

Apologies for misposting this originally..it was not intentional. Anyway...here goes again hopefully in the right place this time!!

 

I just had a court judgement against me in respect of a credit card default. I deliberately did not defend the claim despite the fact that it includes a number of late payment and overlimit fees.

 

I am now intending to ask for a variation order but will also explore the possibility of having the judgement set aside on the basis that the judgement debt includes monies that has been unlawfully charged.

 

Effectively the County Court will now have to make a decision on the legality of the charges?

 

If the judge agrees to set aside the debt he is effectively ruling that the charges are unlawful.yes??

 

Or am I missing something crucial..any help would be appreciated in respect of the legal argument

 

I am also inyterested in hearing from anyone who has had a judgement enforced by a charging order on their home. The point is raised in another post but has anyone defended a claim where an unsecured loan has effectively been securitised in this way. I can't quite believe that this is indefensible given the obviuous unfairness..particular in view of the fact theat the lenders could have offered a secured loan in the first place and have charged an interest rate on the basis of the additional risk involved in the laoan being unsecured.

 

thanks pauli

[BankFodder]

A variation order would only vary the payments. how long ago was the judgment? But probably the only approach would be to start a new action on the amount you dispute but on the new grounds.

Eben this might cause probelms.

Read up "Res judicata"

 

Setting aside a judgment does not indicate that the judge agrees with your legal analysis - only that he thinks that you should have a chance to defend.

Were a judgment to be set aside, a likey order would be judgment set aside, dfence within 14days or judgment restored in default.

[pauli]

thanks for that..my understanding of "res judicata" is that it does not apply to the appeal process..I am in the process of appealing against the original judgement. Admittedly on the grounds of varying the original forthwith order to one that allows me to pay over time..but can I also introduce an argument against the inclusion of unlawful charges in the judgement at this stage. I am assuming an argument could be made that had I known of the unlawful nature of the charges I would have defended the claim originally?

 

I guess though, in terms of the main point regarding legallity of charges. The fact that the judgement is set aside does not imply a ruling on the legality of the charges so gets us no further forward. Presumable though if I am allowed to defend and the claimant contests my argument that the charges are unlawful a decision to exclude the charges from the new judgement debt in my favour would be a positive ?

[BankFodder]

Smudge against Nationwide is in the middle of doing just that. Thee is a hearing to set aside a jdgment dated 14th dec - fixed for 22nd March

 

What does become interesting is that if it is set aside, then a defence will be put in. The the bank will have to prove their charges. Normally where they are merely defending, they don't have to do too much.

 

So on the same basis, if you can get leave to defend, just watch the wriggiling. You can put them to proof. Have you been defaulted? If you have, then i would amend to include an inaccurate default as prt of your case. - by way of counterclaim.

 

With the banks as claimant and shoiuldering the burden of proof, there is apossiblity they will withdraw. They wil consider it, anyway.

[pauli]

Excellent..I will follow that..another interesting aspect is that the claimant is not the original creditor.

 

The card was taken out with another US bank who were aquired by Citfinacial in 2002. Either the debt has been assigned or sold to the claimant Hillesden Securities (who also appear to be a part of CitiFinacial).

 

I have made a DPA request that I suspect they will have difficulty in complying with as the original data will be with Citifinancial and before that the original credit card company. That should muddy the waters a bit.

I wonder what happens if they cannot provide the information that allows me to calculate the total value of the unlawful charges?

[leehughes]

Hi,

 

Got the same problem with a debt to MBNA which is now owned by Link Financial.

 

They have told me that they have the information I am requesting or can request it from MBNA if required.

 

Can't see a problem since if they were unable to provide data to back up their claim, then I doubt they could pursue you in the courts for it.

 

Only my opinion though.

 

Regards

[pauli]

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