Some advice re: an interim charging order pls

[lisaf]

Thanks Von - do you kow where i can find the cpr18 letter? Sorry to be such a pain!

Lisa x

[Von Greenbach]

Sorry to be such a pain!

You're not a pain, it's a nightmare for us that don't understand.

 

Did you send that letter of to them in post 15, if so that is the CPR18 letter.

[lisaf]

Hi, yes i did send it (will check what date when i have my folder) but it was a good few weeks ago.

I've just realised i haven't sent a cca request (duh)! as i didn't read the cpr18 properly and assumed that encompassed the cca.

I will do that first thing on Monday. Are they obliged to supply it even though it's been judgemented?

Thanks again

Lisa

[Von Greenbach]

I've just realised i haven't sent a cca request (duh)! as i didn't read the cpr18 properly and assumed that encompassed the cca.

Part 1 of that letter you sent requests the CCA.

[Von Greenbach]

As they've failed to respond to your CPR request, you could ask one of the mods if it's worth sending that letter in post 49 above.

[Von Greenbach]

Are they obliged to supply it even though it's been judgemented?

Lisa, you need to have a serious think about what grounds you're going to have the interim charging order set a side on.

[Josie8]

Thanks so much Guys. Do you have the template for the dec under s.142?

What if they don't send the agreement or DN within the 14 days? Can i construct my set-aside on that alone - the fact that they haven't replied?

Thanks again

Lisa

 

 

If they don't respond to the Disclosure request within the 14 days you then make an application to the court for an Order for disclosure. On the same application you also request a stay in enforcement proceedings until the Claimant complies with the Order (i.e. stay the final charging hearing).

 

Then if they still don't comply you can make application to set aside on that basis in that they don't have the CCA or default notice.

 

The court process is all about tactics as you will quickly learn...............

[Josie8]

Yes, maybe someone with more expertise could advise you on whether you could send this:

 

For the Attention of the Case Manager

In the matter of

 

Claim Number

 

In My Local CC

 

My Address

 

Dear Sir or Madam,

 

RE: FAILURE BY CLAIMANT TO PROVIDE INFORMATION

 

I would like to inform the court of some difficulties that I am experiencing with the above claim which may prevent me filing a fully particularised defense and counter claim to this action, and may consequently frustrate proceedings.

 

On [XXXXX] I sent the claimant a formal request under the consumer credit agreement, for account. I requested a copy of the credit agreement, a statement of account, and copies of the relevant terms and conditions. I have still not received this information.

 

On [XXXXXX] I also sent a CPR18 request for the claimant to send me information in relation to their claim, that I consider is vital in order to produce a defense and counter claim.

 

I enclose copies of my requests together with proof of postage and proof of delivery to the claimant, and ask that the court consider the matter and take any action it deems appropriate.

 

Enc:-

Letter requesting CCA

Proof of postage

Proof of Delivery

 

Letter requesting disclosure CPR 18

Proof of Postage

Proof of Delivery

 

Good letter but the main problem is that at this moment in time the court isn't expecting you to file a defence or counterclaim as the Claimant already has judgment. You could say that it was frustrating your intention to make application to set aside default judgment I suppose but I think an application for Disclosure wiull be more effective.

[lisaf]

Hi Guys,

now i'm assuming i can send that letter now as the cpr18 and cca request were sent on 3rd Dec and they still haven't complied?

Is it too early too send that into court?

Josie - how do i go about an application for disclosure?

Many many thanks

Lisa x

[lisaf]

Also Von, sorry it isn't eversheds it's howard cohen & co.

Lisa

[lookinforinfo]

Once an interim Charging Order has been granted it is very difficult to prevent the Final Charging Order going ahead unless you have applied for a setaside. This will cost money to do but if you win , you can reclaim the cost from the other side and if you are on certain benefits, the Court will not charge for the setaside-so ask the Court if you qualify.

To possibly get round paying for a setaside, write to the DCA advising them that as they are In breach of CPR and the CCA 1974, you will apply for a set aside which will incur them with extra charges if they cannot produce a valid CCA and Default Notice in Court.Tell them that unless they either agree to write to the Court dropping the Charging Order, or providing the required documents with 14 days, you will without further notice apply for the Set aside which will be heard alongside the Final Charging Order and that you will be attending Court on the day.

[muscat329]

Sorry Lookinforinfo, but I totally disagree with your opening statement.

A creditor wants a charging order, so the system allows him to apply for an interim order to stop the debtor selling his house quickly and hence avoiding the CO. The creditor now has to go to court and convince the judge that the CO should be granted. I know some judges are unsympathetic to debtors. I found a judge who was sympathetic to my arguments. He dismissed the interim CO and awarded me costs. Normally for a conventional CCJ, Mercantile Credit V Ellis should suffice, but I also used prejudical to other creditors and other arguments which I have previously written about on this site.

The debtor should always go into court and fight. It doesn't help to give up before the court appearance.

regards,

Muscat

[lisaf]

Hi Lookingforinfo and Muscat - so basically i should try and get the ccj set-aside, is that right? I'm assuming i use the fact that they have not complied with my request?

I actually have just applied for another set-aside for the same thing (hsbc cc) as i had just missed the defence deadline by one day (totally miscalculated timescales)!

Anyway, that is scheduled for the 10th March (have another thread going on that). That was the first set-aside i have done. Now if i use more or less the same defence i used for hsbc, is there a chance that it will be heard along with the final CO hearing?

But whereas hsbc admitted they have no agreement, i just use the fact that howard cohen and co have not even bothered to reply?

Many thanks for all your help and advice

Lisa

[lookinforinfo]

Muscat, i don't think Lisaf or any other following this thread and in the same boat are even thinking of giving up.

My concern is that if the Judge is unsympathetic, the Interim Order will become Final, almost rubberstamped, even if the defendant is present. So it is much better to prevent an Order becoming Final, than to try and get a Final Charging Order quashed which is why I said that the set aside would probably be the best way to argue against making the Order Final.

As such I am not really concerned what the creditor wants, but how best to stop them in their tracks. so by asking for a set aside, if they fail to provide either a valid executed agreement or Default Notice then the Charging Order will be thrown out and Lisaf can claim costs. If all their documentation is in order Lisaf still has the fall back arguments that it would be hamful/unfair

to the other half, children and the boss as well as other arguments mooted in earlier posts.

And yes. the set aside will usually be heard alongside the Final Order hearing

so you should know by the end of the hearing.

[lisaf]

Great lookingforinfo - so i will get to work on the set-aside this week. Also do i include in that thefact that i have a CO hearing on 2nd March so they can lump them together?

Many thanks

Lisa

[lisaf]

Hi Guys,

right just trying to draft out the n244 and would like a bit of advice/opinions please.

Question 3: What order are you asking the court to make and why?:

The set aside has been requested because information requested from the claimant under the relevant cpr has not been provided to me.

Being a litigant in person and unfamiliar with court protocol i was unaware i could apply for a stay in proceedings and apologise to the court. However, as i have received no reponse at all from the claimant regarding my cpr request which is required under the consumer credit act 1974 and that therefore i would request that the court accepts these reasons for a set aside of the original judgement and provides judgement as follows:

1/ The claimant's claim is without substance and being unsupported by anagreement is declared void.

2/ The claimant, having not provided a copy of the original agreement is instructed to remove any reference to this agreement with all third party credit reference agencies.

 

Question 4/ Have you attached a draft of the order you are applying for?

Having received no notification from the claimant that they have a copy of the original agreement which is required by the consumer credit act 1974 and should have been produced to the court when seeking judgement, I would respectfully request that the court accepts these reasons for a set aside of the original judgement and provides judgement as follows:

1/ The claimant's claim is without substance and being unsupported by a regulated agreement is declared void.

2/ The claimant, having not provided a regulated agreement is instructed to remove any reference to this agreement with all third party credit reference agencies.

3/ Any attempt at enforcement is without substance and being unsupported by a regulated agreement, the defendant respectfully requests from the court a declaration under s142 (1) of the consumer credit act.

 

10/ What evidence will you be relying on, in support of your application?

Now this is the one i'm not too sure about, but how about this?

The defendant would like to draw the attention of the court, the provisions of the consumer credit act 1974, as it pertains to the legislative obligations of creditors. The act makes it clear that a credit agreement is required by law.

Now it's here that i come unstuck a bit as with my other set aside, they admitted they didn't have the agreement but here, they just haven't bothered replying at all.

Any advice would be so gratefully rec'd!

Lisa x

[lisaf]

Also, just checked track and trace and it was sent 3rd dec and delivered 4th dec so they have had more than enough time.

Is it wise to send them another reminder? Would that look favourably in court?

Many thanks again

Lisa

[lisaf]

((((bump))))

[lisaf]

Anyone please?

[supasnooper]

Hi there,

 

Have you applied for the CCJ set-aside ?

 

If so, You could send a reminder to the creditor that a court hearing about this is imminent.

 

As it stands, until you apply for the set-aside, the CCJ is THE agreement as it has subsumed the original Credit Card Agreement.

 

Have a read of this thread to see how x20 explains it.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/167336-charging-order-hearing-18-a.html and the thread linked in it.

 

Hope this helps.

[lisaf]

Hi Supa - no i haven't applied yet for the set aside but i want to asap (as per my post 66). I have part filled the n244 i need some help with filling the rest in and whether what i have done already is good enough?

Would someone be able to advise as i want to get this done this week if poss?

Many many thanks

Lisa x

[supasnooper]

In section 3 you must state you are requesting a set set -aside of the CCJ.

Reason - you believe that there is no CCA that the original judgement was based.

 

This is a very good website and explains everything:

 

National Debtline England & Wales | Debt Advice | Factsheet 12 How To Set Aside A Judgment In The County Court

 

and this one

 

http://www.insolvencyhelpline.co.uk/

 

Scroll down and its on the left hand side under GENERAL DEBT ADVICE

[lisaf]

Hi Supa -though i'd covered it with this?

quote:

Question 3: What order are you asking the court to make and why?:

The set aside has been requested because information requested from the claimant under the relevant cpr has not been provided to me.

Being a litigant in person and unfamiliar with court protocol i was unaware i could apply for a stay in proceedings and apologise to the court. However, as i have received no reponse at all from the claimant regarding my cpr request which is required under the consumer credit act 1974 and that therefore i would request that the court accepts these reasons for a set aside of the original judgement and provides judgement as follows:

1/ The claimant's claim is without substance and being unsupported by anagreement is declared void.

2/ The claimant, having not provided a copy of the original agreement is instructed to remove any reference to this agreement with all third party credit reference agencies.

 

Supa would this suffice? Do you think i need/should add anything else?

 

Lisa x

[lookinforinfo]

Sorry Lisa I have not been at my computer for a few days so thanks to Supasnooper for filling in.

 

You should point out that you have not been provided with the Default Notice and without a valid DN, they cannot apply for a Charging Order.

In case they do have both a valid DN and a valid Executed agreement, then you should also add that to apply a Charging Order is unfair on your other half, the boss and any other creditors.

 

When you fill out the Set aside, it will ask for the case number you are referring to, and from that the Court will marry your set aside with the Court case in March so that both will be heard at the same time. They will also send you a Court date of when the Set aside will be heard-if it is not at the same time as the Charging Order hearing, call the Court and they will amend it.

If you want to add evidence, you can include your request to the other side for information, stating that nothing ahs been received. You ncan also add statements from your other hal etc saying that it is unfair that they should be penalised for a debt that is not theirs etc.

[lisaf]

Hi LFI - thanks so much for that. Now do i add that the haven't issued DN onto the end of question 3?

And also any advice on question 10?

Sorry! - just want to get it all done proper so the slippery so and so's can't wriggle out of anything!

Also do i send them a reminder that they haven't yet sent anything and if so is there a suitable template to use?

Thanks so much again - i really am learning new things here every day!

Lisa x