Help with Final Defence Please

[ekim777]

The way I see it is that I was making a monthly payment and despite this they

started court proceedings. I have done my best to defend this action and failed, I have also had nearly £800 in costs added.

 

Should I continue there will be a greater amount in costs added, as there is no gurantee I would win an appeal, so as far as I am concerned it's game over and I must face the reality of paying, a positive point is that I only owe what I spent, no more interest, no more costs, so I pay them back what I spent and only that amount, so it's not all bad!

[Docman]

ekim

 

You can continue paying but I doubt it will make much difference to your situation. If you were making a monthly payment that they considered unacceptable, what makes you think they will continue to accept monthly payments.

 

They now have a court judgment against you that requires immediate payment of the full amount plus costs. It is more likely that they will seek a charging order to secure the judgment and then sit back until you sell your property, especially if they continue a small monthly payment.... UNLESS YOU APPEAL.

[emandcole]

So sorry to read all of this and to get the result you got. I would appeal without doubt, clearly the judge was more interested in getting out to the golf course and his failure to apply basic CC law to your case is shocking.

 

Seems he was using a test of morality as opposed to actual law and if you can show that then you have every right to have your case reviewed by a judge that does know the law. Your case does have some issues which have clearly been ignored, at the very least you could have argued for a reduced amount or terms that are more favourable. Let us know what you're going to do ok, you know there are many crusaders here who are happy to assist.

[Mydogsawestie]

Docman - doesnt the judge set a payment on the CCJ what is affordable though for Ekim777?

 

Also should they secure a Charging Order & sit back until the prop is sold what happens then to the monthly payments that are being made, does that all stop till the day the house is sold, or does the monthly continual payments eventually come off the charging order amount obtained?

[ekim777]

At this stage it is also a matter of costs, I was well prepared for the summary hearing and honestly thought I had enough points to secure a win, however the hearing was traumatic, I was out of my depth, confused and loosing on every point raised, even my "ace cards" were being shot away. With hindsight perhaps I could have done better? Who knows?

 

All i do know is that after a very traumatic nine months, I am back where I started but owing another £800 and a small fortune in registerd post costs etc, etc

 

I am eternally grateful to those who helped and at least I did have a go at a defence.

Edited September 21, 2009 by ekim777

[ekim777]

Can anyone give an idea of the cost of the appeal, as I am of a mind to do so, as I am still lived!!!

[Docman]

ekim

 

Details of the rules about appeals are in Part 52 of the CPR and the accompanying Practice Direction and can be found at PART 52 - APPEALS - Ministry of Justice.

 

As far as the fees are concerned, I believe the fee payable on the Application Notice is £100 for Small Claims track and £120 for all other cases. You may also have to pay at a later stage for the DJ's comments to be transcribed.

 

Please bear in mind the tight timescale to lodge an appeal and let us know if you decide to go ahead.

[ekim777]

Unbelievably I have found the original DN, it is dated the 3 July 2008 with settlement required by the 17 July 2008, surely this is enough to get it thrown out? I need to be certain as I will have to borrow the cash for the appeal

[ekim777]

The copies that were sent with their Witness Statements were dated 3 July 2008 with settlement by 20 July 2008, so they have obviously spotted thier mistake.

[AndyOrch]

Hi Ekim

 

 

I have only picked up the end of your thread but can see enough to know when a miscarriage of justice occurs.Whilst Litigants in Person are supposed to have equal access to justice, regardless of whether they are the Claimant or Defendant in a case-that's the ideal, however in reality......!Unless a person can and does argue vehemently about the validity of an agreement and/or Default Notice, as far as the Judge is concerned, the debt is owed and he wants you out of his Court asap, because he is pressed for time! Not right, not fair, but that's how the system regrettably operates!

 

The fundamental arguments to raise in Court, both to get the Judge's attention and to make 100% sure the case goes your way, is to argue that the credit agreement is invalid, and of course the invalidity of the DN which gives them no legal right to collect the debt. Unlawful charges are of course important, but a secondary issue, as is PPI.

 

I admire your strength in dealing with the Judge yesterday, however, I don't think you seazed the opportunity to gain the best and most advantageous point to secure a win, I wouldn't let the Claimant's lies distract you from your objective of getting rid of the debt and winning the case. The plain fact is, if a party to a case believes that they will gain an advantage by lying, they will, simple as that! It should make you twice as determined to win the case on the facts, rather than stooping to their level! You cannot stop another party behaving in a particular way, be that lies, or whatever else-but you can make sure that your case is watertight and that you are prepared for what Judges, Solicitors & Barristers will throw at you!

 

My advice is, submit an application to set a side You will have to submit a fresh defence & c/c if you are looking to claim back penalty charges and possibly compensation for their addition to the a/c. The same is true for reclaiming PPI plus damages for it's unlawful addition. Furthermore, if the agreement's unenforceable, there will be various breaches under the Data Protection Act 1998, for which it would be appropriate to seek damages. You may also want to add unlawful harassment to the list also!Do both soon!

 

 

I hope that makes things a bit clearer.

 

 

Regards

 

Andy

[ekim777]

Hi Andy, Thanks for the comments, so an application to set aside in completely dofferent than an appeal?

 

I have a feeling they will sbumit their forged copies as the true ones?

 

What do you think

[AndyOrch]

An appeal is to overturn the DJs decision, a set a side if successful would allow you to redefend and C/C if ness less tricky and if lucky you may get a different DJ on the day.If you use the N245 it only costs you £35!!!!

 

Regards

 

Andy

[ekim777]

Hi, I the form not a N244?

[AndyOrch]

Apologies yes N244.

 

 

Andy

[ekim777]

Thanks,

 

I will get something together this evening, hopefully someone can help?

[Mydogsawestie]

Unbelievably I have found the original DN, it is dated the 3 July 2008 with settlement required by the 17 July 2008, surely this is enough to get it thrown out? I need to be certain as I will have to borrow the cash for the appeal

 

And they doctored one with the 20July on - unbelievable!!! Good luck Ekim777 looks like you now have all hands on board with this one!!!

[ekim777]

Just to be totally certain do you also agree that 3 July 2008 to the 17 July 2008 does not give me 14 days?

[AndyOrch]

2. Practice Direction

 

Service of Documents - First and Second Class Mail

 

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

 

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

 

(a) in the case of first class mail, on the second working day after posting;

 

(b) in the case of second class mail, on the fourth working day after posting.

 

"Working days" are Monday to Friday, excluding any bank holiday.

 

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

 

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

Regards

 

Andy

Edited September 22, 2009 by Andyorch
addition

[ekim777]

The 3 July 2008 is a Thursday, so allowing 2 days for first class post, that makes it Monday for receipt if weekends don't count? I make that 12 days left to respond am I correct?

[AndyOrch]

Correct, see above i have made an addition

 

 

Regards

 

Andy

[ekim777]

Great! si I need to get my Witness Statement and Defence ready is it a complete Witness Statement and Amended Defence or do I just refer to the new found evidence?

[AndyOrch]

You need to make application first and successfully attain that.Some submit a statement (be it Defence or WS or Affidavit) with the application to support their application.

 

Regards

 

Andy

[ekim777]

I still have concerns that the judge will accept their copys of the DN and not mine, is this a possibility?

[AndyOrch]

What are the differences to theirs and yours?

 

 

 

Andy

[Mydogsawestie]

The 3 July 2008 is a Thursday, so allowing 2 days for first class post, that makes it Monday for receipt if weekends don't count? I make that 12 days left to respond am I correct?

 

And can they put it to strict proof it did go 1st class? If not second class would make it less to rectify matters