Repo order help with defence needed.

[humbleman]

MY understanding is you will not be able to apply for a set aside.

 

You will have to seek leave for appeal to the same court and this will probably be heard by the circuit judge.

[nks22]

According to this link:

 

Applying to Set Aside a Judgment Made at a Hearing - About Small Claims (UK)

 

set aside is only an option if you weren't in court. Since the judge has already refused an appeal this leaves the Appeal Court as your only option. (That's assuming it was the Small Claims' court.)

[cosalt]

now I am very confused

[Lord_Alcohol]

According to this link:

 

Applying to Set Aside a Judgment Made at a Hearing - About Small Claims (UK)

 

set aside is only an option if you weren't in court. Since the judge has already refused an appeal this leaves the Appeal Court as your only option. (That's assuming it was the Small Claims' court.)

 

I think you're referring to set aside of a default judgement, but cosalt was in court and set aside is available.

 

Also, it wasn't small claims. Appeals are a different matter as well.

 

LA

[Lord_Alcohol]

MY understanding is you will not be able to apply for a set aside.

 

Why?

 

LA

[nks22]

I think you're referring to set aside of a default judgement, but cosalt was in court and set aside is available.

I'm just quoting that site, which says set aside isn't available if the defendant was in court. I've no idea myself whether or not it's correct in these circumstances.

[cymruambyth]

I think you're referring to set aside of a default judgement, but cosalt was in court and set aside is available.

 

Also, it wasn't small claims. Appeals are a different matter as well.

 

LA

 

LA humbleman is going through the appeals process and has quite a long thread with a lot of input on it.

[Lord_Alcohol]

I'm just quoting that site, which says set aside isn't available if the defendant was in court. I've no idea myself whether or not it's correct in these circumstances.

 

I think any judgement can be subject to set aside, default or not. There has to be a reason for the application (which cosalt I think has) but we also need to know the probablility of the case being re-heard before the same judge.

 

If the probability is high, then use appeal route as M suggests.

[Lord_Alcohol]

LA humbleman is going through the appeals process and has quite a long thread with a lot of input on it.

 

Was an application for set aside made at all? Or straight in to appeal?

[Worsteve]

Thinking about it I wonder how they are going to register the CCJ ? The agreement and all the paperwork is in the company name, which as it is a partnership is just a 'trading as' title. We are the company, but if they registered the CCJ in the company name it would be meaningless as any search done on us would use our personal details.

 

Anyone know anything about this ?

 

Just a thought Cosalt,

 

I had a CCJ registered against me, and they were taking me tocourt to put a charging order against my house, so I paid for an N244 form to set aside a Judgement. The hearing for both the charging order and my reasons to set aside were at the same time. The judge, whilst snotty with me, let me file my reasons for defence, and that was a Dodgy DN. As I had paid the £75 they were bound by their own oath to here my defence. There was no denying it was a faulty notice, and I also put in that I had made many payments to the loan. The DJ was abit arsy about my defence but when I told him all I had to say was the truth and I mentioned I had a Faulty DN, the oppositions solicitro took me out of the court, reviewed my DN's and after a 45 min chat with the Claimant, went back in court and said they were happy to set aside the Default Judgement. I am not usre if this helps and there are many other more experienced people on here, but the DJ had to go along with the dodgy DN as a defence to my CCJ.

 

Whatever....everybody on here is routing for you including me. Good luck.

[emandcole]

The issue of potentially getting the same judge to review his earlier decision has to be a no-go from the court perspective. It would make no sense for the court to put this matter before the same judge as we'd all agree I'm sure.

 

Logic and plain common sense would demand that a different judge is asked to review the earlier decision. Bit like asking a doctor for a second opinion and out they go, only to come back in again and present the same diagnosis!

 

Would be crazy

[cosalt]

Thanks for the continued help everyone, ive just been out on my mountain bike to take my mind off things !

 

So who makes the decision about if to accept the set aside or not ? How can I find this out, will the court tell me.

 

There seems to be so much conflicting information, all valid and appreciated, I just dont know where to go from here ?

[diddydicky]

talking the comments of the judge at face value as you have reported them, the grounds for appeal are that

 

The judge mis- directed himself

 

the basis of the appeal being that the judge did not have any authority to counter the provisions of the consumer credit act with regard to the steps that the creditor must take before he can claim ENTITLEMENT to the benefits of s87 of the act

 

thus, if he ruled that an admission of the debt by the defendant- gave grounds to the creditor to claim repayment of sums not yet due- then he clearly misdirected himself.

 

the question of whether you admit the debt (in full or with provisos) is a read herring and irrelevant

 

even if you admit the debt (which of COURSE can be proven to exist in 99% of cases - even without an agreement) the creditor CANNOT claim entitlement to demand re payment of sums not yet due, nor terminate the agreement UNLESS he first complies with the requirements of the act with relation to the Default Notice

 

the are several issues with the DN which make it inneffective-and thus prevent the claimant from demanding payment of sums not yet due- not least of which is the fact that what was produced by the claimant to support his claim against you and alleged to be a true copy of the DN served on you- was in fact no such thing and therefore did not provide a cause of action.

 

i suspect (no offence) that you have failed to put your case in this respect to the court in a legally correct manner and/or a combination of a judge looking for an easy day in court

 

either way an appeal (if your report of the judges decision making process is correct) - is IMO a cast iron home banker

 

although hard for a LIP- it is (IMO) always a good idea when you see a judge leaning this way is to politely tell him something along the lines of " if you are minded to find in favour of the claimant on this point- then i would be obliged if you would make full notes of your reasoning for appeal purposes"

 

in other words you should alert the judge to the fact that you will appeal

 

whether he "gives you permission to appeal" is really of no significance if you are alleging that he has mis directed himself

 

you NEED to get the transcript pronto and get notice of your appeal going

 

All IMO of course

[cosalt]

talking the comments of the judge at face value as you have reported them, the grounds for appeal are that

 

The judge mis- directed himself

 

the basis of the appeal being that the judge did not have any authority to counter the provisions of the consumer credit act with regard to the steps that the creditor must take before he can claim ENTITLEMENT to the benefits of s87 of the act

 

thus, if he ruled that an admission of the debt by the defendant- gave grounds to the creditor to claim repayment of sums not yet due- then he clearly misdirected himself.

 

the question of whether you admit the debt (in full or with provisos) is a read herring and irrelevant

 

even if you admit the debt (which of COURSE can be proven to exist in 99% of cases - even without an agreement) the creditor CANNOT claim entitlement to demand re payment of sums not yet due, nor terminate the agreement UNLESS he first complies with the requirements of the act with relation to the Default Notice

 

the are several issues with the DN which make it inneffective-and thus prevent the claimant from demanding payment of sums not yet due- not least of which is the fact that what was produced by the claimant to support his claim against you and alleged to be a true copy of the DN served on you- was in fact no such thing and therefore did not provide a cause of action.

 

i suspect (no offence) that you have failed to put your case in this respect to the court and/or a combination of a judge looking for an easy day in court

 

either way an appeal (if your report of the judges decision making process is correct) - is a cast iron home banker

 

although hard for a LIP- it is (IMO) always a good idea when you see a judge leaning this way is to politely tell him something along the lines of " if you are minded to find in favour of the claimant on this point- then i would be obliged if you would make full notes of your reasoning for appeal purposes"

 

in other words you should alert the judge to the fact that you will appeal

 

whether he "gives you permission to appeal" is really of no significance if you are alleging that he has mis directed himself

 

you NEED to get the transcript pronto and get notice of your appeal going

 

All IMO of course

 

Hi DD

 

Thanks for you input. so to clarify are you saying an appeal is a must and a set aside is not.

 

I have an appeal form (n161), I asked for it on the way out of the court ! It does look very confusing, is there anything particular I should know.

 

Am I really going to get a fair deal with the appeal ? Will I have to go to another hearing ? how long will it take to get the appeal ? will everything go on hold in the meantime ?

 

Loads of questions but I really now feel out of my depth ( if I wasnt before )

[diddydicky]

Hi DD

 

Thanks for you input. so to clarify are you saying an appeal is a must and a set aside is not.

 

I have an appeal form (n161), I asked for it on the way out of the court ! It does look very confusing, is there anything particular I should know.

 

Am I really going to get a fair deal with the appeal ? Will I have to go to another hearing ? how long will it take to get the appeal ? will everything go on hold in the meantime ?

 

Loads of questions but I really now feel out of my depth ( if I wasnt before )

 

as i said- if what you say is correct the judge clearly misdirected himself- he used your admission of a debt to the creditor as a reason to allow the creditor to claim entitlement to s87 of the CCA even though they had not complied (in several fatal respects) with the requirements of the act in which he was making a decision

 

pm citizem B and she will give you some usefulk links to filling out the forms which are not too difficult

 

but you must get your a*se in gear and not prevaricate

[cosalt]

ok so looks like an appeal is the way to go, how do I get the transcript ?

[emandcole]

ok so looks like an appeal is the way to go, how do I get the transcript ?

 

Sure a quick call to the court concerned would reveal the best way to get this

[diddydicky]

i think they willl give you a list of approved transcribers

[cosalt]

ok I need the transcription of the judgement, do i need this before submitting the appellants notice, I will phone the court today and get the name of a transcriber.

 

Is the timescale for an appeal 14 days from the date of the judgement ? Any idea how long the transcription usually takes.

 

I also need a form n460 which the judge should have completed I believe ?

[cymruambyth]

You need to ask the court for the N460; I would write as well as phone.

[Lord_Alcohol]

as i said- if what you say is correct the judge clearly misdirected himself- he used your admission of a debt to the creditor as a reason to allow the creditor to claim entitlement to s87 of the CCA even though they had not complied (in several fatal respects) with the requirements of the act in which he was making a decision

 

pm citizem B and she will give you some usefulk links to filling out the forms which are not too difficult

 

but you must get your a*se in gear and not prevaricate

 

but...surely grounds for set aside

 

As emandcole has said, it probably is unlikely that the same DJ will hear.

 

If set aside granted, then timescale for appeal runs after the re-heard case, not the original. If not granted, then nothing lost.

 

The timescale for application/processing of set aside should be very quick. It is probably assessed by the court manager or clerk.

 

It will not cost you anything cosalt (as your income is below the threshold) and in the meantime you can busy yourself with appeal docs.

 

Well, just my thoughts, but would think sensible given the small amount of time/effort/cost and the significantly increased hassle of appeal. Just ignore me if you're set on appeal (which I cannot see you losing - DD's summary is perfectly accurate).

 

LA

[cosalt]

Hi LA, no I am not set on appeal at all I just want to take the best option and get it right. What you say makes perfect sense, I just worry if I am going to end up appealing anyway I may as well do it now.

[Lord_Alcohol]

Hi LA, no I am not set on appeal at all I just want to take the best option and get it right. What you say makes perfect sense, I just worry if I am going to end up appealing anyway I may as well do it now.

 

Understand completely cosalt, you need to make the best decision for you not me! You're getting lots of good advice from the other CAGgers so hopefully will find the way forward shortly.

 

Keep posting/asking questions though - I am sure there are lots of us behind you and who also have an interest in what happens next.

 

LA

[frettful38]

Good advice LA,

 

Hang on cosalt in there, after what i have been through this should be a walk in the park for you.

 

Wish legalpickle was here as he is out of this world when it comes to appeals and courts.

[cosalt]

Ok, so am I right in saying the following:-

 

1. A set aside is where the judgement is effectively stopped and the case is re run in the same court with a new hearing.

 

2. An appeal is where the judgement is looked into to see if it is correct by a higher court.

 

Can the claimant object to either of these ?

 

What are the costs implications, say I got the set aside and it was re heard ( if that is right ), would the claimant get double / extra costs as a result if I lose ?

 

Sorry for all the questions....