Arrow/evershers CCJ+CO over old MBNA debt

[reggie76]

Docman, your advice and feedback is always gratefully appreciated.

 

Could I just ask your feedback on another point I raised?

 

Also when a judge orders you to make full payment of the outstanding sum forthwith, how long do you have to pay?

 

I noticed that my judgement to pay forthwith was the 13th of the month and the creditors applied for a charging order on the 25th of the same month, I thought I had 16 days to object so I assume that would be to pay as well?

[the_shadow]

Docman, your advice and feedback is always gratefully appreciated.

 

Could I just ask your feedback on another point I raised?

 

Also when a judge orders you to make full payment of the outstanding sum forthwith, how long do you have to pay?

 

I noticed that my judgement to pay forthwith was the 13th of the month and the creditors applied for a charging order on the 25th of the same month, I thought I had 16 days to object so I assume that would be to pay as well?

 

reggie... google is your friend here

 

S.

[Docman]

Docman, your advice and feedback is always gratefully appreciated.

 

Could I just ask your feedback on another point I raised?

 

Also when a judge orders you to make full payment of the outstanding sum forthwith, how long do you have to pay?

 

I noticed that my judgement to pay forthwith was the 13th of the month and the creditors applied for a charging order on the 25th of the same month, I thought I had 16 days to object so I assume that would be to pay as well?

 

Hi Reggie

Since you didn't attend the original hearing, the Court made the judgment 'forthwith' in other words you pay up now. If you couldn't pay, you could have gone back to court to have the 'forthwith' order changed. You would then have 16 days to consider the terms, and I think this is where you are getting the 16 days limit from.

If you had paid the debt in full within a month of judgment, then you could also ask the court for an order that the judgment would not be recorded against you. Sometimes, because of this month, some creditors wait for a few weeks before asking the court to enforce the judgment. In your case, as far as the creditor was concerned, you hadn't responded to the court case. Therefore they appear to have gone back after a couple of weeks to enforce the judgment by obtaining a 'Charing Order'. I have no doubt they would have argued to the court that you hadn't responded and so they were left with no alternative but to ask for a CO in order to secure the debt. The court would tend to grant an Interim Charging Order' before a hearing to grant a 'Final Charging Order'.

[reggie76]

I did complete a N245 form as I advised that I could not pay the full amount but that got thrown out.

 

I have sent a letter today to the court, which I don't want to put on the site in case spys are looking, so will see what they say.

 

thanks again

[Docman]

Reggie

 

I think it is time for you to visit the court and ask to see the documents on the court file. Try and get copies of the original claim with the Particulars of Claim, the Agreement, Default Notice and Notice of Assignment. Eversheds should have filed all these with the court to substantiate their clients claim. Let us know what you find.

[reggie76]

Spoke to the courts and I have had to put the request in writing which will then be passed to the judge to see if he agrees that I can receive said documents.

[car2403]

I bet they want an application and the associate fee before they agree to it.

 

Wouldn't you be better off asking for these under CPR Part 31.14/31.16 and/or Part 18 from the Claimant.

 

Also, if the claim went undefended, the Court wouldn't have wanted any of this documentation as the claim would have sailed through the process without intervention.

[reggie76]

Thanks for that point Chris.

[Docman]

I bet they want an application and the associate fee before they agree to it.

 

Wouldn't you be better off asking for these under CPR Part 31.14/31.16 and/or Part 18 from the Claimant.

 

Also, if the claim went undefended, the Court wouldn't have wanted any of this documentation as the claim would have sailed through the process without intervention.

 

They probably do want a fee but I bet they can't tell you how much. All that has to be sent is a written request to the Court. IMO, the CPR part 5 doesn't allow a District Judge to ban a party from seeing copies of the documents on the court file. I've extracted the relevant bits of the CPR and Practice Direction below.

 

Civil Procedure Rules Part 5

Supply of documents to a party from court records

5.4B

(1) A party to proceedings may, unless the court orders otherwise, obtain from the records of the court a copy of any document listed in paragraph 4.2A of the Practice Direction.

(2) A party to proceedings may, if the court gives permission, obtain from the records of the court a copy of any other document

Practice Direction Part 5

4.2A

A party to proceedings may, unless the court orders otherwise, obtain from the records of the court a copy of –

(a) a certificate of suitability of a litigation friend;

(b) a notice of funding;

© a claim form or other statement of case together with any documents filed with or attached to or intended by the claimant to be served with such claim form;

(d) an acknowledgment of service together with any documents filed with or attached to or intended by the party acknowledging service to be served with such acknowledgement of service;

(e) a certificate of service, other than a certificate of service of an application notice or order in relation to a type of application mentioned in sub-paragraph (h)(i) or (ii);

(f) a notice of non-service;

(g) an allocation questionnaire;

(h) an application notice, other than in relation to –

(i) an application by a solicitor for an order declaring that he has ceased to be the solicitor acting for a party; or

(ii) an application for an order that the identity of a party or witness should not be disclosed;

(i) any written evidence filed in relation to an application, other than a type of application mentioned in sub-paragraph (h)(i) or (ii);

(j) a judgment or order given or made in public (whether made at a hearing or without a hearing);

(k) a statement of costs;

(l) a list of documents;

(m) a notice of payment into court;

(n) a notice of discontinuance;

(o) a notice of change; or

(p) an appellant's or respondent's notice of appeal.

Supply of documents from court records – general

5.4D

(1) A person wishing to obtain a copy of a document under rule 5.4B or rule 5.4C must pay any prescribed fee and

(b) if permission is not required, file a written request for the document.

 

 

Car, I take your point about the CPR 31.14 request. However, reggie is finding that Everheds are avoiding supplying the documents. I suspect theywould probably reject a CPR 31.14 letter on the basis that the matter has been dealt with now that judgment has been obtained. I agree that the court may not have been interested in having the documents if the case was undefended. However, that doesn't mean the documents shouldn't be supplied. All that reggie needs to establish to apply for a set aside is that the documents are NOT on the court file. If the lack of documents can be shown, there is a good chance of the set aside succeeding.

[r&b]

ive had this problem with hfc. ive dun all the relevant requests (got 1 without prejudice, then ignored) CCA/SAR/31.16/reminder 31.16...no reply at all let alone that i can challenge in court for the set aside..only way is to be prepared to go the whole hog and apply to the court on the N244 as per PTs thread regarding this i guess..paulwlton did suggest applying for disclosure of CCA request but i was awaiting elaboration on that as ive not heard of it b4, dunno if this cud help?...this ignorong may be a tactic if they have a no/crap agreement i guess.

[car2403]

All that reggie needs to establish to apply for a set aside is that the documents are NOT on the court file.

 

I wonder if a question with the right wording to someone in the Court office would establish what isn't on the Court file would do? Seems daft to have to pay a fee for them to tell you if something isn't on file.

 

[reggie76]

Cheers all.

[Docman]

I agree, which is why I'm surprised the court went down the 'formal' route of asking for a written request and payment of a fee. But is there is another alternative if the creditor is being stubborn and not providing the CCA and other documents?

 

As far as I can see, it's a chicken & egg scenario. You can't apply without claiming the judgment was obtained with no/faulty documents but you can't force the creditor to disclose the documents until you make the application.

 

usually, I find the court staff quite helpful. When I went to my local court office to check a point on the court file, not only did he bring me the file to show me the documents, but the manager suggested to me that I just write in for what I wanted rather than make an application on a N244 form and have to pay the fee of £75.

[reggie76]

Cheers Docman, I may be better off going down to the court rather than calling but I'll see what they say to my written request first.

[I've got no money]

I know that I may sound obsessed with Assignments BUT this is an assignment - you also need to ask for a copy of the original assignment not only does CPRF 31.14 give you a right But Lord Denning said that you are entitled to see the original assignment Van Lynn Developments v Pelias Construction CO LTD 1968 [3] All ER 824

 

In terms of looking at the court file - if I were you I would phone the court office and ask if it's OK for you to go in and look at the court file. I think that you may find that they are quite happy to let you visit the court and look at the file.

 

You really do need to put together an application to set aside judgment - whilst I accept that it is going to be a difficult application I don't think that you have a lot of choice really

[reggie76]

Thanks for the advice

[Docman]

Cheers Docman, I may be better off going down to the court rather than calling but I'll see what they say to my written request first.

 

reggie,

 

I have found out that the court fee is £5 for copies of the first ten pages of a document and then 50p for each additional page of the document. It may be best if you could visit the court first and ask the court staff to look at the court file. Writing in means they will have to treat your request more formally.

 

If the documents are on file (CCA, Default Notice and Notice of Assignment) you can ask for copies. Worse case is that you would be charged probably be £5 for each or the court staff may not charge you if its just a few pages.

 

If the documents are NOT on file, then you won't have to pay and you can make your application on the basis that no documents were filed when they should have been

[reggie76]

Cheers Docman. Just spoke to the court and I need to speak to the Court Manager who's not in till tomorrow! Can't afford the £75 at the moment to send in a N244 so feel a bit in limbo as not sure what documents they have or have provided if any.

 

I've sent a letter into the courts outlining my reasons for wishing to apply for a set aside without actually applying for a set aside to see if I can get any feedback!!!

[I've got no money]

In terms of the court fee - don't forget that you can apply for remission

 

The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts Service -Forms and Guidance) is not available

 

The form is ex160a

 

By the way the Link does work

[reggie76]

Cheers for that, but I'm self employed and don't want them looking through all my bank statements, accounts etc. I'd rather find the £75 but don't want to waste it.

 

Hope this isn't a daft question but rather than applying for a set aside if I went to the hearing for the suspension of the warrant of execution and gave my reasons for this could the judge possibly set aside the judgement without me completing a N244 and paying the £75 fee on the grounds of the creditors not supplying the required documents therefore there is no legal evidence for them to enforce the agreement. I know there is a CCJ and CO in place but as this is a different court could they rule in my favour as the CCJ and CO should not have been granted.

 

If I've already asked this I apologise but my head is spinning.

[I've got no money]

Depends on the Judge - what you could do is write to the other side and explain that you intend to apply to set the judgment and the charging order aside at the hearing of the suspension of the warrant - you would need to give them detailed reasons. It would then be up to the judge whether he was prepared to deal with it.

 

Have you already applied to suspend the warrant - because of course there is a fee payable on that application - if not you could make one application to set aside the judgment, set aside the charging order and to suspend the warrant. You would have to complete an N244 covering all three but only paying one fee

[Docman]

Hi reggie

 

I agree with IGNM but I doubt the court hearing the warrant application will do anything about turning over the CCJ & the CO. At the very best, you might get the hearing adjourned IF you have made an application to set aside. Without a pending application, I wouldn't think you have much chance but others may have a different opinion.

 

My suggestion is for you to visit the court, talk to the court staff and see if there is anything on file. If there isn't anything, you can then spend your £75 (you will have to scrape it together I'm afraid if you don't want them going through your books) on making the application for all three things as IGNM suggests.

 

If there are documents on file and you can't get the court staff to provide copies for free, then I suggest you spend the money in getting copies of the main documents and then come back for further advice depending on what the documents contain.

 

I can appreciate your head will be spinning right now. I was in the same position a couple of years ago before I found CAG and the wonderful people it attracts. Stick with it and you will overcome. Just start to take some action.

[r&b]

okay spoken to CAB, taking legal advice- knew taking out this cover on my home insurance would help!,

did u get anywhere with this reggie?

[reggie76]

Been given good advice but not as good as what's on here.

 

Waiting for the court to give me a call regarding what's on my file as from what I gather it's not much!!!

[r&b]

so its not a full service then? they dont provide u with legal representation, just advice?