HFC/Restons/Charging Order - ***ORDER REMOVED***WON***

[Satterthwaite]

Paul,

Thanks for the help, I am just going through it now and will take my N244 to court on Monday morning.

[Satterthwaite]

I submitted my claim to have the CCJ overturned yesterday, so fingers crossed.

I will update when I hear something.

[robcag]

Good luck Satterthwaite

 

Cheers

Rob

[OnMyWayOut]

Good luck from me too!

[interweb]

GOOD LUCK!

 

I will be preparing my document soon as well!

[Satterthwaite]

I have a court date of the 15th September

Good news.

[Satterthwaite]

In view of the impending court date any advice on what I will need at court would be greatley appreciated.

 

Thanks

[OnMyWayOut]

I would suggest a PM to surfaceagentx20 to have a look at this, as he is well up on COs. I've sent you a PM.

[surfaceagentx20]

Setting aside old default judgments is a tricky business. The reason they can be tricky to set aside even with some arguable prospect of success on the defence being shown, is because of the provisions of CPR 13.3(2) which provides

 

In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

 

Thus, the court must have regard to whether the application to set aside was made promptly.

 

You will see what I mean therefore about the trickiness of it all.

 

As I understand it, the statement in support of the application to set aside, in brief,

advances a series of contentions as follows:

 

1 that the agreement was improperly executed

2 an averment that no agreement existed the agreement

3 a denial of breach of the agreement

4 a denial of receipt of an effective default notice

5 that no letter before action in prescribed format

6 that the Particulars of Claim are devoid of such particulars as would enable a plea

7 that the judgment debt incorporates penalty charges

 

I will go through each of the 7 contentions:

 

On production of good evidence to support contention no1, an arguable case would be made out. But where is the proof? The supporting statement does not reveal that the documentary evidence has been appended to the witness statement.

 

Denying entry into the agreement seems to stretch credibility. The statement is made with a statement of truth. I imagine this will need qualification perhaps by saying that what was averred was not denial of entry into the agreement but rather denial of entry into an enforceable agreement. If so contention no2 is no more than a repetition of contention no1

 

Contention no3 is advanced in a way where its survival is dependant upon contention no1 being sustained. It falls away upon contention no1 being rejected.

 

Contention no4 is negative in nature and open to rebuttal by the opponent. On production of a fully effective default notice the burden of showing reasonable prospects of success on this contention will dwindle

 

Contention no5 is a non-starter. So far as I am aware there is no prescribed form of letter before action in consumer credit claims or an applicable pre-action protocol

 

Contention no6, whilst very likely true, does not of itself stand as a defence to the claim advanced in the Particulars of Claim how ever poorly pleaded.

 

Contention no7 goes to quantum only and not to the entirety of the judgment.

 

Further and generally, the application to set aside a judgment, where the grant of an order would be in the discretion of the court, is no place for the applicant to go chucking out 'puts to proof' and such like. On obtaining judgment the burden of proof firmly switches away from the Claimant to the applicant. The burden will be upon the applicant to demonstrate the court should exercise discretion in the applicant's favour.

 

 

In my view, any merit in the application lies primarily with the notion the agreement was improperly executed and unenforceable. It is on this that the applicant will have to prove he has reasonable prospects of success, but in the absence of documents put before the court on the set aside application and with which to judge the merit of this contention, the applicant will be unlikely to succeed.

 

Ensure all documentation relied upon is filed and served on the opposition ahead of the hearing.

 

 

It is at this point I have to go back to what I said at the beginning about the trickiness of applications to set aside where they are made very late.

 

What amounts to applying promptly will depend upon the circumstances of each case and of each applicant for set aside. An application made after 28 days was held not to be made promptly (Regency Rolls Ltd v Carnall [2001]. A delay of 30 days by a litigant who needed to obtain representation was described as “dangerously close” to the margin in BCCI v Zafar [2001].

 

From what I can tell, the application to set aside makes no attempt to address this requirement or begin to excuse the significant lateness. That is going to be a real obstacle, particularly since the creditor has proceeded to obtain a charging order.

 

The requirement to apply promptly is special to applications under CPR 13.3. Promptness though, is but one of the things the court will look to in its attempt to do justice between the parties. Consider CPR 3.9. Look at what’s at the top of the list at 3.9(a).3.9(a) looks comforting until you look at what comes next at 3.9(b).

 

Here’s CPR 3.9 in full:

 

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;

(b) whether the application for relief has been made promptly;

© whether the failure to comply was intentional;

(d) whether there is a good explanation for the failure;

(e) the extent to which the party in default has complied with other rules, practice directions, court orders and

any relevant pre action protocol;

(f) whether the failure to comply was caused by the party or his legal representative;

(g) whether the trial date or the likely date can still be met if relief is granted;

(h) the effect which the failure to comply had on each party; and

(i) the effect which the granting of relief would have on each party."

 

A prolonged delay in applying to set aside was considered in Nageh v Giddings [2006] where there was said to be delay 10 times the delay in Regency Rolls. Beginning at paragraph 11, the judgment is an informative description of the things which will be considered by the court on an application for set aside with prolonged delay.

 

In the case, the Judge was easily persuaded there had not been promptness but went on to consider whether there was an acceptable explanation for the lack of promptness. In support, the applicant for set aside submitted medical records which he sought to show demonstrated he had suffered a mental breakdown. The Judge carefully examined the material and concluded the medical evidence, whilst showing evidence of mental breakdown and the like, was not sufficient to excuse the applicant for set aside for lack of promptness throughout the entire period between judgment and the application to set aside.

 

If this case shows nothing else, it shows the importance to be attached in applying promptly and of introducing evidence to explain any delay. If you do not deal with delay in the supporting witness statement the court will be unable to consider any excuse for delay.

 

I regret to say I think such grounds as are advanced on the merits of the case are in truth limited to one or two at most and in their current condition are not adequately established in the application, although I suspect that with a little bit of work, they might be. More worrying is the complete absence of any credible evidence that would excuse a delay in applying to set aside for a period of two years. That unexplained delay I fear, is likely to be fatal to the application.

 

If as I suspect, the application to set aside is refused, the charging order will not be disturbed.

 

I know I am pouring cold water on your case and I am sorry to be doing this. I hope noetheless that what I say is helpful to you in deciding how to progress. I really hope you get your set aside nonetheless.

 

x20

[Satterthwaite]

X20,

Thanks for taking the time to give your opinion.

[Satterthwaite]

I had a letter the other day from Mortimer Clarke Solicitors stating that they were now acting on this case and not Restons.

 

also they acted for Phoenix Recoveries (UK) Ltd.

[Satterthwaite]

I am concerned that this could get confusing I originally set out to try and get the CCJ for HFC set aside. From reading what X20 has put that seems unlikely, however HFC have now sold the debt to Marlin or is it Phoenix.

I would love to know for what amount, I am just thinking wether that is allowed.

I am going to try and read round some threads on Marlin but can any one please reading this point me in the right direction of any threads or if you are are in a similar position with HFC/Marlin please post on this thread or a link to your thread.

THANKS!

[Satterthwaite]

First glance it seems plenty of people are at the pre CCJ point which they should have no problem in sorting out. Unfortunately I am way past that with a a Charging Order as well, how the hell can can HFC sell my debt for pennies in the pound if they are happy to sell for that they should have asked me if I wanted to buy it.

[robcag]

Hi S

 

As you will recall, I'm in a similar situation to you regarding an HFC account with a Judgement and CO on it which has allegedly been assigned to Marlin/Phoenix/etc? and on which I'm still trying to prepare a set-aside application.

 

Like yours, my Judgement is quite old (April 2007), but something I've been considering (which surfaceagentx20 has emphasised a few posts further up your thread) is that delay. I'd already been giving this negative aspect some thought for quite a while and have decided to use the mitigating reasons for delay as the failure by HFC to come up with requested documents in response to my 2 CCA requests and a S.A.R - (Subject Access Request), even after I threatened them with court action regarding their S.A.R - (Subject Access Request) failure.

 

I have the letters and proof of posting to back this up, and also the very limited responses I got from HFC to my S.A.R - (Subject Access Request) and subsequent threat.

 

I am going to use that argument coupled with the fact that I did not want to go ahead with a set-aside application if I could not then put forward a prospective defence which had little chance of success due to not having seen certain documents.

 

I'm not sure yet who I file and serve my application on when I get it finished, whether it just needs to go to the court, or also be copied to HFC and/or Marlin.

 

I've already said it further up the thread, but good luck on Monday.

 

Cheers

Rob

Edited September 13, 2008 by robcag
added the words "and CO" (in red)

[robcag]

Hi S

 

Something else which may be relevant is the fact that HFC are still reporting monthly account status as 'Default' right up to September for both my HFC accounts.

 

The point I'm making here is that Marlin and their cronies are not reporting on those accounts even though they have allegedly been assigned them. :-|

 

Cheers

Rob

[Satterthwaite]

This has come in the post today.

 

[Satterthwaite]

Now what? obviously I can apply for a stay although I am unsure upon what grounds.

Must admit I am in despair with this now.

[tinkerbell20]

Hi S

 

As you will recall, I'm in a similar situation to you regarding an HFC account with a Judgement and CO on it which has allegedly been assigned to Marlin/Phoenix/etc? and on which I'm still trying to prepare a set-aside application.

 

Like yours, my Judgement is quite old (April 2007), but something I've been considering (which surfaceagentx20 has emphasised a few posts further up your thread) is that delay. I'd already been giving this negative aspect some thought for quite a while and have decided to use the mitigating reasons for delay as the failure by HFC to come up with requested documents in response to my 2 CCA requests and a S.A.R - (Subject Access Request), even after I threatened them with court action regarding their S.A.R - (Subject Access Request) failure.

 

I have the letters and proof of posting to back this up, and also the very limited responses I got from HFC to my S.A.R - (Subject Access Request) and subsequent threat.

 

I am going to use that argument coupled with the fact that I did not want to go ahead with a set-aside application if I could not then put forward a prospective defence which had little chance of success due to not having seen certain documents.

 

I'm not sure yet who I file and serve my application on when I get it finished, whether it just needs to go to the court, or also be copied to HFC and/or Marlin.

 

I've already said it further up the thread, but good luck on Monday.

 

Cheers

Rob

 

 

 

You are entitled under CPR to have the enforceability of an agreement considered by a Court at each stage of enforcement proceedings right up to sale order.

[OnMyWayOut]

Is this Marlin applying to take over the CCJ/CO? Are there any objections that can be raised? It might explain why HFC are so reluctant to provide documents at the moment.

[OnMyWayOut]

You are entitled under CPR to have the enforceability of an agreement considered by a Court at each stage of enforcement proceedings right up to sale order.

That is soooo good to know - I wasn't aware.

[Satterthwaite]

TinkerBell, can you please expand on this "You are entitled under CPR to have the enforceability of an agreement considered by a Court at each stage of enforcement proceedings right up to sale order."

 

Would that include my situation?

[tinkerbell20]

TinkerBell, can you please expand on this "You are entitled under CPR to have the enforceability of an agreement considered by a Court at each stage of enforcement proceedings right up to sale order."

 

Would that include my situation?

 

 

Yes an application under S. 142 920 CCA 1974 can be made at any stage

[Satterthwaite]

TBell, interesting thanks

[surfaceagentx20]

Yes an application under S. 142 920 CCA 1974 can be made at any stage

 

Tinks, have you ever known of an application being made to the court under section 142 and which succeeded, post-judgment?

 

The reason I ask is that surely, post-judgment, the rights of the parties would be subsumed in the judgment, not an agreement upon which by definintion, the court will have already adjudicated.

 

x20

[robcag]

Hi x20

 

Tinks, have you ever known of an application being made to the court under section 142 and which succeeded, post-judgment?

 

The reason I ask is that surely, post-judgment, the rights of the parties would be subsumed in the judgment, not an agreement upon which by definintion, the court will have already adjudicated. Would this be the case even though the agreement document has never been brought to the proceedings? I believe Satterthwaite's case was decided by Judgement by default, and mine was by admission of the default amount as stated by the claimant (I was deceived before I knew my rights). At no time in my claim was the alleged agreement ever produced. I now know that they never had an agreement, just an illegible irreemably flawed application form (due to no prescribed terms).

 

x20

 

Cheers

Rob