Robinson Way CCJ/CO Cap1 card debt - was unable to respond - now want to set aside **LOST** - appealed - **WON** Claim reset - **WON - Case dismissed**

[RobinWayRobinme]

Thanx citizenB and thank car2403 for me.

 

As I need to phone court Mon re other sols not being advised of set aside hearing would you suggest I ask court if I need to submit WS with N244. I did think I need not as all I am doing is introducing further evidence for an app to set aside where a date for hearing already set

 

Think I may have found answer on procedures relating to WS. My interpretation on this is that all I need to do is serve a copy of WS on court and other side (no forms needed) There doesn't appear to be any time constraints apart from the fact the person who has been served WS has 7 days to object to it. So guess making sure its with other side at least 7 days before hearing is OK.

 

To follow is link to site got some of this info in case its of use elsewhere.

 

http://www.aboutsmallclaims.co.uk/witness-statements-small-claims-court.html

[citizenB]

Yes, of course, there is a statement that if the other side want to object etc, they have to do it 7 days prior to any hearing.. so methinks you are in good time for this.

 

If you are phoning the court tomorrow, make a list of questions you need answers to and see if they can advise and put your mind at rest.

[RobinWayRobinme]

Will do and I'll let you know what the court says. Thanx for now

[r&b]

hi robin,

very small issue regarding points 5 & 6. in point 5 u say 'clearly' and in point 6 u say it was 'unclear', i would change the wording here as it seems contradictory.

glad citb has u under the wing of the site team.

[RobinWayRobinme]

Thanx R&B

Good point and amended WS. Yes busy weekend. Both help from oy, CitizenB and site team has been invaluable.

I will post response from court when I ask about the new sols and who was served with notice of set aside hearing!

 

OK phoned court and they confirmed:

 

1. Application to set aside served by court on Claimants former sols as court had not been notified of a change of solicitor at that time, despite the date of notice of change of solicitor dated before date on notice of hearing to set aside.

2. Court agreed that new sols should have been provided with file or notes advising them of set aside hearing.

3. Court agreed that even though it wasn't necessary it would do no harm in me sending a copy of application to set aside and hearing date, but suggested that they should be referred to the court if they wanted any further details.

4. With regard to WS, court confirmed that I should just serve copy on claimant and send copy to court with a letter identifying application and hearing date.

 

So all OK at this time

[citizenB]

Excellent. I imagine you are happier now certain key areas have been confirmed.

[RobinWayRobinme]

Yes I am Many thanx for ur help. Just changed my broadband so setting this up now. will let you know what happens and hopefully my experiences can be of help to others. Obviously still got some way to go with this and I have some ideas for hearing that I will post when broadband is fully set up etc.

[citizenB]

OK phoned court and they confirmed:

 

1. Application to set aside served by court on Claimants former sols as court had not been notified of a change of solicitor at that time, despite the date of notice of change of solicitor dated before date on notice of hearing to set aside.

2. Court agreed that new sols should have been provided with file or notes advising them of set aside hearing.

3. Court agreed that even though it wasn't necessary it would do no harm in me sending a copy of application to set aside and hearing date, but suggested that they should be referred to the court if they wanted any further details.

4. With regard to WS, court confirmed that I should just serve copy on claimant and send copy to court with a letter identifying application and hearing date.

 

So all OK at this time

 

I just noticed, they didnt even inform the court of a change of solicitor ?

[RobinWayRobinme]

No thats right. Would seem sols didn't file N434 util just before they applied for interim charging order. Guess its to my advantage, particularly that their clients did npot brief new sols fully

 

Coluln't resist posting this! Just checking through paperwork and think I discovered reason new sols weren't put on record straight away. They sent their notice to wrong address They sent it to Magistrates Court at different address to County Court.

[r&b]

Hi all,

 

Coluln't resist posting this! Just checking through paperwork and think I discovered reason new sols weren't put on record straight away. They sent their notice to wrong address They sent it to Magistrates Court at different address to County Court.

 

hhmmm......shows u wot ur dealing with doesnt it !!!

[citizenB]

Hi all,

 

Coluln't resist posting this! Just checking through paperwork and think I discovered reason new sols weren't put on record straight away. They sent their notice to wrong address They sent it to Magistrates Court at different address to County Court.

 

 

That is a classic

[RobinWayRobinme]

Hi all

Just looking for some opinions on tactics. Other side have failed to reply to my 31.14. As set aside hearing is 04/09 should I chase 31.14 now or should I wait for hearing and if successful with set aside try there and then to get summary judgment dismissing their claim as they can't provide doc referred to in POC as surely that should have been available to them when claim first made. Any thoughts

[r&b]

send reminder giving 7 days for compliance...enclose copy of ur original request recd del... u can show these rqsts and receipts of postage at the hearing in an effort to undermine them.

[RobinWayRobinme]

Thanx R&B will do

[RobinWayRobinme]

Hi all

 

Not been able to get online as changed broadband and massive probs with it (another story). Anyhow, thought I must do something re Interim Charging Order (hearing same date as set aside) just in case something goes wrong, although I am confident with set aside.

 

Can I have some opinions on second witness statement, shown below, just addressing charging order issue.

 

 

 

2nd Witness Statement of RobinWay

 

 

Claim Number: XXXXXXXX

 

 

Exhibits:

 

 

Date: 25 August 2009

 

 

 

 

 

IN THE XXXXXXXXX COUNTY COURT Claim No. XXXXXXXX

 

 

BETWEEN:

 

 

 

 

ROBINSON WAY & COMPANY LIMITED

 

 

Claimant

 

 

 

 

AND

 

 

 

 

 

ROBINWAY

 

 

Defendant

 

 

 

 

WITNESS STATEMENT OF MR ROBINWAY SETTING OUT OBJECTIONS TO CHARGING ORDER

 

 

 

 

 

1. I Mr RobinWAy of XXXXXXXXXXXXXXXXXXX am the defendant in this case and a litigant in person and I make this statement to set out my objections to the Interim Charging Order obtained XX June 2009.

 

2. I make this Witness statement from information and facts within my own knowledge, except where I have indicated otherwise, and which I believe to be true. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

 

3. I would refer to my first Witness Statement in support of my application to set aside judgment and I will refer to such evidence referred to in that.

 

4. Whilst I believe that in the interests of justice the Judgment should be set aside, this Witness Statement has been made to specifically deal with the Claimants application for a Charging Order should it prove necessary to deal with this at the hearing on 4 September 2009.

 

5. I would aver that the Claimant knowing that the Judgment in default entered on 15 May 2009 was defective and therefore an irregular judgment and the Claimant having failed to take any steps to neither correct the defective judgment nor assist me in doing the same and knowing that I had made an application to set aside the defective judgment, the Claimant applied for a Charging Order.

 

6. I would claim that the Claimant completed form N379 Application for charging order on land or property, and signed the Statement of Truth knowing that that the facts contained in it were untrue thereby bringing the Claimant in contempt of court according to CPR 32.14. The particular untruth was the deliberate omission of other creditors known to the Claimant of which I would refer to the exhibit marked “AL1-5”.

 

7. I would also like to bring to the courts attention that in the Claimant’s Application N379, the Claimant referred to a judgment given on 13 May 2009 and therefore the Interim Charging Order refers to a judgment given on this date. The date that the Claimant obtained judgment was not 13 May 2009, it was 15 May 2009 and I would therefore suggest that the interim charging order obtained on the 29 June 2009 is defective.

 

8. I believe that if the Interim Charging order was to continue it would be (a) unfair to my unsecured creditor MBNA as the Charging Order would prejudice them by giving the Claimant priority, and (b) will jeopardise arrangements I have made with them. The Claimant was aware of this creditor before completion of form N379 and I would refer to the exhibit marked “AL1-5” as proof of this.

 

9. I believe that as the Judgment given on 15 May 2009 is an irregular judgment and as such I could not have been in breach of the order. As I have not been in breach of any order, the Claimant should not be allowed enforcement by way of a Charging Order or otherwise.

 

10. I would aver that during my limited dealings with the Claimant they have acted dishonestly and have engaged in a business practice that is deceitful, oppressive, unfair and improper (whether unlawful or not) nor have they acted with professional diligence.

 

11. Not withstanding the above, it would not be worth a charging order being made to secure payment of the alleged debt as I do not have sufficient available equity in my share of my home. When my home was purchased on XX XXX 2003, my wife and I purchased it as Tenants in Common with my share of our home being 1%. The Proprietorship Register for my home as detailed in the Interim Charging Order has the appropriate entry severing joint tenancy and I would refer to the exhibit marked “AL2-16” which is a copy of the declaration of trust dated XX XXX 2003 as evidence of my 1% share in my home.

 

12. My wife and I purchased our home on the XX XXX 2003 for £325,000.00 with an interest only mortgage from Mortgage Express. I would refer to the exhibit marked “AL2-17” which is a copy of the last annual statement from XXXXXX XXXXX dated 31 March 2009 showing a closing balance of £276,671.29. I have made every effort to determine the current value of my home but as the property market is so bad and I live in a small village I have been unsuccessful in getting meaningful comparable values. However, in assuming an annual growth of 5% per annum would value my home at about £425,000.00 giving an approximate net equity after selling costs of 3% of £135,579.00 of which £1,355.79 is my share.

 

13. I would respectfully ask the court to agree with me that the Claimant has had one overall objective in these proceedings and that being to obtain a Charging Order with little or no regard to fairness, the Consumer Credit Act 1974, CPR’s and Pre-action Protocols as set out in Practice Directions - Pre-Action Conduct. Their conduct in these proceedings’ has severely prejudiced my position and such practices relating to Charging Orders have been investigated by the Office of Fair Trading who produced a review in June 2009 which states:-

 

The OFT's Review of the use of Charging Orders by its Licensees

As noted above, due to the reported rise in numbers of charging orders being granted the OFT has conducted a wide-ranging review of the use of charging orders as a method of enforcing judgment debts, where the debts originally arose under regulated consumer credit agreements.

 

The interim results of this review indicate that there may be potential problems with the way in which some creditors use charging orders as part of their debt enforcement activities.

 

The OFT will be working with licensees to ensure that consumers are not the subject of what we would consider unfair business practices in relation to the use of charging orders and orders for sale.

The OFT expects its licensees to accord with all relevant legislation and guidance when conducting debt enforcement proceedings. The OFT will take appropriate action where it finds business practices that fall below the standard expected of licensees.

 

14. Under the circumstances, I would respectfully ask the court to discharge the Charging order.

 

Statement of Truth

I believe that the facts stated in this Witness Statement are true.

 

 

Signed ………………………………………………………..

Mr RobinWay

 

Dated …………………………………………………………

Comments gratefully appreciated as I need to get this to Claimant by Friday (7 days before hearing) would have posted sooner if I could have got online.

[RobinWayRobinme]

Hi all any help on my last post as I need it to hit the post today

[RobinWayRobinme]

Hi all

Well my day in court is this afternoon:cool: Bit nervous but believe that I'm well prepared thanx to the help here. Will post outcome of set aside later.

 

Once again many thanx for the considerable help from R&B and CitizenB. I couldn't have done this without you.

[r&b]

best of luck robin hope all goes well.

[citizenB]

Hi Robin, crikey that came round quick. Good luck for today. Please let us know how you get on. I think you have prepared well so should be ok.

[RobinWayRobinme]

Thanx for kind thoughts. Signing off now. Be back later

[RobinWayRobinme]

Didn't go well at all:cry: Advice needed now as to what to do next. After I made my presentation salient points of what followed shown below:

 

1. Handed a copy letter by DJ that she had just recd today (I hadn't been sent a copy) purporting to be a Notice of Assignment dated 25/11/2008 from Robinson Way. It gives no balances or anything apart from account numbers. Quite honestly it looks like it was drawn up by them this morning and faxed to sols.

 

2. DJ just accepted this as a proper assignment and therefore I must owe Robinson Way.

 

3. I pointed out that as this had just been handed to me it should not be taken into account as I had not been given opportunity to take advice on the document. I pointed out that I did not believe it was a proper notice of assignment.

 

4. No other docs produced and DJ ignorred the point I made regarding the POC only refering to "a credit agreement..". In fact when I pointed out claimants failure to produce any docs reqd in my 31.14 letter and that at the very least I would have expected they would have provided a copy of the said credit agreement, the other side confirmed that they were unable to find an agreement. I asked how can they bring an action on an agreement when one doesn,t exist. Noted by DJ but no comment.

 

5. With regard to irregular Judgment. This was dismissed out of hand by DJ saying that the offer made was unacceptable as it would take too long to repay money allegedly owed. I said that I believed that it is not for the court to take a view as to how long it would take to repay a debt, it was for the court to determine what the debtor could reaslistically afford to pay which would be reassessed at a later date. Again ignorred.

 

6. The other side referred to a letter I had sent claimant 30/01/09 in which I refered to money that I owed to Capital One that they had agreed not to pursue. The DJ took that as an admission that I must owe the money and together with the newly printed notice of assignment concluded that I would not be able to defend the claim and dismissed set aside.

 

7. I reminded the DJ that the claimant had failed to follow any procedures in CCA and that failure to follow them does not allow them to enforce a debt.

 

8. Whilst I could not deny that money was owed at one time to Capital one I pointed out to DJ that I believed it would not be enforceable and that I did not accept that it had been properly assigned to the claimant. Again DJ took no notice.

 

9. Charging order adjourned for 6 weeks to allow them time to contact my other creditor to see if any objections.

 

So walked out completely dejected and downtroden now I feel angry as I believe that I did keep calm and beleive that I presented my case reasonably well but was I treated fairly by the court DEFINATELY NO. Did the court take account of the CCA 1974 DEFINATELY NO. I think the other side was nearly as surprised as me as they wanted to talk to me beforehand and I said I didn't want to talk to them and they said all they wanted to know was would I be asking for costs and what they would be as their seemed little point in going over anything else!!

 

Appart from alcohol tonight, I just feel like getting in the car with my wife and kids and drive far away from this blXXdy awful country. Please help, what can I do now. I can't give up on this as I believe that i have now been treated unfaily by the claimant and the court. I am a fighter that never gives up in what I beleive in but need some direction with this.

[citizenB]

Oh Robin, I am so sorry to hear this.

 

I am not sure what you can do.. I will ask around for you.

[RobinWayRobinme]

Thanx CitizenB

There must be something I can do as it was so wrong what happened today. I'm still in a state of shock but will be opening a bottle of wine soon:)

[citizenB]

Easy for me to say, but try and forget about it over the weekend. Look at it with fresh eyes in a couple of days.

 

I am sure someone will look in over the weekend and offer advice.

[RobinWayRobinme]

Good advice, but I'll leave computer on just in case someone comes up with an answer