Defence Struck Out.

[Marc1971]

Hi everone.

 

My wife is being taken to court by Nat West because of an unpaid overdraft of £3500. We received all the court paperwork and mistakenly filed a defence instead of an admission because the wording on the forms appeared ambiguous. In our defence, we admitted we owed the money, but stated that since we had fallen into debt (due to my ill health and subsequent job loss), all 7 other creditors had accepted our offers of repayment, but Nat West had refused all our offers.

 

We have today received a 'General Form of Judgement Order', stating that the court on it's own initiative, without a hearing, had found for the Bank and we had to pay the £3500 pounds immediately. No time to pay, no chance to put our case, just a demand to pay.

 

There is an option to have it 'set aside, varied or stayed' if I apply within seven days, but no hint of how to do that.

 

Can anyone advise what we should do please? All we want is time to pay, about £25 a month, until it's paid off.

 

I thought that in these times of economical hardship, the courts were supposed to look at cases of genuine hardship sympathetically? We originally sent this lengthy defence letter explaining how difficult things were (two little children, both of us on medication, no work etc) and all we get is a demand to pay the whole amount immediately without even a chance to put our case on a day in Court.

 

Please help!

[robcag]

Hi Marc

 

It appears that you actually admitted in your defence that you owed the money, so therefore as you weren't denying that you owed all or part of the amount claimed, you were not actually offering any defence.

 

It will be of very small comfort to you that you are not alone in your approach to your defence and subsequent judgement for the claimant as I myself did almost exactly what you describe about a year ago before I had found this site, except that I 'partially' defended the claim.

 

My defence only objected to the huge collection charge which had been added, but I admitted the defaulted amount of the claim. The result was that the collection charge was dropped like a ton of bricks and judgement was issued against me for the amount I had admitted.

 

I'm no expert but one possible ground that I can think of for getting the judgement set-aside would be that you agreed to the amount claimed at the time, but no longer agree. e.g. does the amount claimed include any penalty charges etc?

 

No doubt someone more knowledgeable will be along soon to advise.

 

Good luck,

Rob

Edited May 19, 2008 by robcag
typo

[Marc1971]

Thanks Rob..

 

The amount does include unpaid cheque charges and overdraft charges, so I can see where you are coming from, but surely I can't add to my previous defence at this stage? Can I?

 

Any advice gratefully received.

[robcag]

Hi Marc

 

As I understand it, your case has been dealt with and judgement has been awarded in favour of the claimant. Your defence is probably now no longer relevant (unless a point of law had been contravened, which I don't think will be the case?)

 

You will now have to apply for the judgement to be set-aside if you have good enough reason for that to happen.

 

Here is a link which was given to me in my thread on CCJ set-aside which you may find useful: Removal of CCJ's - Main Menu

 

You may also like to read some other threads on CCJ set-aside attempts which may answer some of the questions which you will no doubt come up with.

 

My own particular thread is here: http://www.consumeractiongroup.co.uk/forum/legal-issues/123971-ccj-set-aside-help.html#post1289475

although I haven't proceeded with an application yet.

 

Cheers

Rob

[Marc1971]

Rob...I've just noticed that I don't even get 28 days to pay. 'Payment Forthwith', the date to pay by being the same as the day of the case.

 

So much for compassionate judges.

[nicklea]

marc,

 

Did you specifically request time to pay on the form when you admitted the debt?

 

This could be quite important because if you did then they cannot get a defualt judgement under CPR 12.3(3)© and the court MUST set aside the judgement - they have no discretion due to CPR 13.2

 

So, it really is very important to know what exactly did you write on the admission - did you specifically ask for time to pay?

[nicklea]

OK, I just reread your original post and it was done on the initiative of the court rather than the claimant trying to get a default judgement.

 

I think taht it would be best to click the red traingle button with a ! in it and that will highlight it to one of the mods.

 

It certainly seems unreasonable that, in a case where the claimant is barred from applying for a default judgement the judge can, effectively just go ahead and do it himself.

 

But one of the much more expereinced people here might have more of an idea about this.

[Marc1971]

Thanks for your replies Nick.

 

Our error lay in not knowing if we were admitting or defending the case. We clearly admitted we owed the money, but because we wanted to put our side of the story, (ie that Nat West didn't want to negotiate at all, despite our situation) the only option seemed to be to file a defence.

 

Once the next lot of forms arrived we were faced with this form (see attachment). Now, that is the defence form, the one to fill out if you dispute the amount owed, but it has boxes to tick if you admit you agree you owe the amount .

 

Confused? We were.

 

We naively thought it would all be cleared up on our day in court. Hah. Next thing, a curt demand to pay an immediate £3500....

[Marc1971]

marc,

 

Did you specifically request time to pay on the form when you admitted the debt?

 

This could be quite important because if you did then they cannot get a defualt judgement under CPR 12.3(3)© and the court MUST set aside the judgement - they have no discretion due to CPR 13.2

 

So, it really is very important to know what exactly did you write on the admission - did you specifically ask for time to pay?

 

Nick, you are a genius.

 

We originally filed the admission form and under Section 11, entitled 'Offer of Payment', we clearly ticked the 'I can pay by monthly instalment' box.

 

Part CPR 12 says....

 

"3) The claimant may not obtain a default judgment if –

(a) the defendant has applied –

(i) to have the claimant’s statement of case struck out under rule 3.4; or

(ii) for summary judgment under Part 24,

and, in either case, that application has not been disposed of;

(b) the defendant has satisfied the whole claim (including any claim for costs) on which the claimant is seeking judgment; or

© (i) the claimant is seeking judgment on a claim for money; and

(ii) the defendant has filed or served on the claimant an admission under rule 14.4 or 14.7 (admission of liability to pay all of the money claimed) together with a request for time to pay.

 

 

Is it that simple? If it is the case, surely the judge would know he can't demand immediate payment? I've looked at Parts 13 and 14 and I can't see anything that cancels out the above.

 

I rang the court today and they said the form I need to challenge the Court's decision would cost £75!

[ukaviator]

Marc

 

Do you have charges applied to the account? , late payment charges, non payment of DD fees etc...

[robcag]

.....

I rang the court today and they said the form I need to challenge the Court's decision would cost £75!

 

The actual form doesn't cost anything, but submitting it does! However if you are receiving certain income-based benefits such as JSA then you do not have to pay. If you do not have proof of entitlement to those benefits when you submit the form then if you can raise the money from somewhere, you can pay the fee then claim it back up to 6 months later.

 

I'm guessing the form you need to submit your application (BICBW) will be an N244 which can be downloaded. Also you will need an EX160 to claim your exemption from fee payment (plus proof of entitlement as mentioned above).

 

Rob

[Marc1971]

Marc

 

Do you have charges applied to the account? , late payment charges, non payment of DD fees etc...

 

Yep, but I didn't mention them in my defence.

[ukaviator]

That should be enough to mount a counterclaim for the charges. Do you have all of your statements with these charges on?

[Marc1971]

OK, I just reread your original post and it was done on the initiative of the court rather than the claimant trying to get a default judgement.

 

I think taht it would be best to click the red traingle button with a ! in it and that will highlight it to one of the mods.

 

It certainly seems unreasonable that, in a case where the claimant is barred from applying for a default judgement the judge can, effectively just go ahead and do it himself.

 

But one of the much more expereinced people here might have more of an idea about this.

 

Hi again Nick

 

It wasn't done entirely on the initiative of the court as Nat West's solicitor had applied for my defence to be 'struck out' on the basis that my defence was no defence at all in that I was admitting to owing the money. A copy of the application was included in with the judgment. The judge agreed with him and there and then ordered that I pay the amount owed, plus costs, immediately.

 

Is that a 'Default Judgement'?

[Marc1971]

That should be enough to mount a counterclaim for the charges. Do you have all of your statements with these charges on?

 

Yes, today's letter has prompted me to start the process to reclaim the bank's charges. I enclosed the £20 (two accounts) and will presumably get a list of the charges. In any event I still have the statements, but can I counter-claim at this stage?

 

Thanks for your help.

[Marc1971]

Okay ladies and gents, I have spent the whole evening peering into the most obscure corners of the Web trying to work out if this judgement is valid.

 

It appears that the crux of the matter is whether the judgement made 'on the court's own motion' is a 'default judgement'. If it is, it appears to be invalid because (a) I filed a defence and (b) I asked for time to pay.

 

Strangely, the bank's solicitor only applied for the striking out of my defence on form N244, but never asked for a judgement, the court did that on it's own initiative.

 

So...can anyone help. Is the judgement a 'default judgement'?

 

Thanks a million.

[ukaviator]

Hi Marc

 

You should fill in the form N244 and file that straight away, asking for a set aside.There would be a fee for this, £35 i think.

 

You then complete form N9B, when you get your paperwork through. This is for your counterclaim form. You attach a schedule of charges spreadsheet with 8% interest added to each charge. This would be the total you would be claiming.The N9B form is here:

 

http://www.hmcourts-service.gov.uk/news/forms/docs/n9b_0406.pdf

 

There is some more info here for you to digest.

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex303.pdf

[ukaviator]

Marc here is a letter you could send them to speed up the process, otherwise your S.A.R will be held up in their system.

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

 

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

 

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)

 

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

d.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

 

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

 

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

 

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

 

Sorry to keep nipping back on here, i have limited access at work . .

[Marc1971]

Thanks a lot UKAv. That is superb.

 

Doing it now.