Aplins/Hillesden Securities Ltd (dlc) claimform - old HBOS Credit Card debt -got CCJ but WON CO Hearing

[Shazza50]

Would this not just be delaying the inevitable though? As far as I can make out I have no grounds to stop it happening anyway.

[Gaston Grimsdyke]

Yes you've got it. There's no point asking for an adjournment if you can't stop them getting the final order - it'll only mean more costs. Obviously your concern is to make sure the charging order doesn't progress to a sale, but as a previous poster stated it would be very unlikely a judge would grant an order for sale on such a modest debt anyway. I would, however, write to the court asking them to excuse your attendance and explaining the reason, and ask them to accept your written submissions. I would say to the court that you can't oppose the making of a final order, but would ask the court to add a provision that no order for sale proceedings are to be issued provided you maintain payments of £10pm. Copy that letter to the other side and, with luck, they might even consent.

[Shazza50]

Thank you. Now, do I write as in letter form or is there a particular way to do this. Also, do I have to send in an I & E to show thats what I can afford.

[AndyOrch]

Shazza

 

Knowing the history of your case and having advised you on parts, I really think you need to attend this hearing.

You need to bring to the attention how you was not given a Forthwith nor advised what to pay by the Court.

The claimant has never contacted you since judgment to arrange payment either.

 

There will still be notes in your case file of these errors and If I was you i would be strenuously objecting to the ICO

due to the incompetence of the DJ /Claimant.

 

 

Andy

[Shazza50]

Hi Andy, thanks for your input. There is a very small possibilty that I can get the time off now, won't know until tomorrow.

Do you really think that the court were in the wrong for not stating it was a Forthwith? Should Hillesdens have contacted me about a payment arrangement before applying for the CO?

If so, would you help me with a statement please? Would I have to send it to the court in advance of the hearing as it is on 1st June.

I hope I am not in front of the same DJ as I don't look forward to calling him incompetent .

[BRIGADIER2JCS]

If the DJ has made errors in law it must be reported to protect others who may appear before him/her!

[Shazza50]

It was a 'him' and a horrible man who basically said he didn't agree with people using the internet to get out of paying their debts. Then slapped me with a ccj .

[BRIGADIER2JCS]

That I believe is an outrageous statement an individual has the simple right to seek advice from where they wish.

This must IMHO be reported to the Dept. of Justice, a complaint to your MP as well is in order.

[AndyOrch]

Hi Andy, thanks for your input. There is a very small possibilty that I can get the time off now, won't know until tomorrow.

Do you really think that the court were in the wrong for not stating it was a Forthwith? Absolutely it should state on the General Order " Payment Forthwith or in installments of £ XXXX pm starting from date XXXXXXX it has to be one or the other so the Defendant knows what to do. Should Hillesdens have contacted me about a payment arrangement before applying for the CO? Well most decent Claimants would (yes there are few) and some even send a N245 or N244 before seeking application of the ICO

If so, would you help me with a statement please? Would I have to send it to the court in advance of the hearing as it is on 1st June. You normally receive application of the ICO and are offered opportunity to make objections.Have you received this? Objections should be presented usually within 7 days of the hearing so you need to get your skates on.

I hope I am not in front of the same DJ as I don't look forward to calling him incompetent .

Dont worry about that, though I doubt it will be the same, do you think he would be worried about passing a CO on your abode?????

Shazza you may not stop the ICO (Restriction) but please dont go down without a fight.

Here is a copy of Cyms defence statement (she won) digest and it will give you some idea but your should include the proceedial errors.

 

 

In The xxxx County Court

Claim Number: xxxxx

 

Applicant: xxxxxxxx

 

Defendant: xxxxx

 

Defence

 

1. I xxxx of 2 xxxx am the defendant in this action and make the following statement as my defence to the application for a charging order made by xxxx.

 

2. On 2010 a County Court Judgement was awarded against me in favour of xxxx. Unfortunately I was unable to afford legal representation and could not afford to appeal this decision. I am waiting for the relevant paperwork from the original creditor to enable a claim for unlawful Payment Protection Insurance and for unlawful charges.

 

3. When District Judge xx gave his judgement he stated that as I was not in a position to pay the full amount, if I could come to an arrangement to repay the sum with xxxx within 21 days then no judgement would be entered against me. (Exhibit xx1)

 

4. On xxxx I spoke to xxxx a litigator from xxxx Solicitors, who were acting on behalf of , who agreed a repayment plan of £x0 and suggested that the first repayment was made after Christmas in January 2011.

 

5. I received a letter which was incorrectly dated (xx January 2010, instead of December 2010) from xxxx Solicitors giving me the relevant banking details to enable me to set up a standing order (Exhibit xx2).

 

6. I set up a standing order mandate for a payment of £x0 to be paid on xxxx and the xx

th of every subsequent month. I have made all these payments and have no intention of defaulting on these payments. (Exhibit xx3)

7. I subsequently discovered that this was only an informal arrangement and would offer me no legal protection. On 2011 I submitted a N245 Application for Variation of an Order with the relevant payment requesting an instalment order.

 

8. On xx 2011 an instalment order was made stating that the first payment was to be made by xx 2011. As stated in point 6,

payments of £x0 have been made by standing order each month since xxxx.

9. According to 'Section 86(1) The County Courts Act 1984:

 

‘Where the court has made an order for payment of any sum of money by instalments, execution on the order shall not be issued until after default in payment of some instalment according to the order.’

 

10. This point was further considered in the case of Mercantile Credit V Ellis in The Court of Appeal 1987, where it was found that the wording of the Charging Orders Act states quite clearly that no further action could be taken without a default in payment.

‘For my part, I would hold that where the circumstances established that an order for payment by instalments has been made and has been observed, then in any event it would be impossible to attack an exercise of discretion where that discretion was exercised in favour of a debtor (now a judgment debtor) faithfully discharging the terms of the judgment order itself.

 

So far as the jurisdiction point is concerned I have only one matter to add. Reliance was placed on the fact that under Section 1(1) of the Charging Orders Act 1979 the charge may be imposed in order to secure "the payment of any money due or to become due under the judgment or order." Those words appear to me to be wholly without significance for present purposes, when one observes that Section 86 of the County Courts Act 1984, having first imposed an embargo on the execution of the order until after default in payment of some instalment according to the order, goes on to provide by subsection (3) as follows: "Except so far as may be otherwise provided by county court rules made for those purposes, execution or successive executions may issue if there is any such default for the whole of the said sum of money and costs then remaining unpaid or for such part as the court may order either at the time of the original order or at any subsequent time; but except so far as may be otherwise provided by such rules, no execution shall issue unless at the time when it issues the whole or some part of an instalment which has already become due remains unpaid."

11. Following a review of charging orders by the Office of Fair Trading in 2010, it was stated in their press release on 22 November 2010:

‘2. A charging order is one of a number of enforcement methods available to creditors to ensure that judgment debts are satisfied. A charging order can only be applied for where a court judgment has already determined that a debtor owes money to the creditor, and payment under that judgment is not forthcoming.’

12. My husband xxxx has joint interest in this property and would be prejudiced if a Charging Order is applied to a property for a debt which he does not owe.

 

13. My husband, by virtue of his earning more than I do pays the mortgage.

 

14. In their application xxxx makes no reference to any other creditors (other than the Mortgage lender) and by being awarded a Charging Order I believe that this would give them an unfair advantage over these creditors, with whom instalment orders are in place.

 

14. If the court awards a Charging Order to the Applicant, I believe that this would prejudice the chance for my husband and I to obtain future beneficial mortgage deals, the inevitable consequence being that our monthly mortgage payments would increase and I would be forced to submit a further application to the court to consider a decrease in the monthly sum payable to xxxx.

 

15. This has been the family home for xx years and I do not anticipate selling it in the future. At present my children all live at home..

 

16. The sum claimed in the application for a charging order is incorrect; £xx has already been cleared, bringing the sum outstanding down to £xxxx.xx from £xxxx.xx.

Regards

Andy

 

[AndyOrch]

This is her thread http://www.consumeractiongroup.co.uk/forum/showthread.php?299564-Yet-Another-Charging-Order-Thread!-***WON***-ICO-removed***

[Shazza50]

Andy, Hillesdens applied for the ICO on 6th April, the paperwork from the court is dated 14th April. Hillesdens sent this to me with a letter dated 20th April. I cannot find anything in there that says I can object or offers me the opportunity to object. As far as I saw it, it was a case of showing up at the hearing. If I send something in now they won't receive it before the 7 days as the hearing is next Wed.

[AndyOrch]

The information re the ICO should come direct to from the Land Registry with the appropriate forms re objections.

They applied on the 6th and wrote to tell you on the 20th gets worse !!!!!!! and more reasons to object.

 

Study Cymruambyth,s thread and you will understand the process then try to get something down in the form as above

if you fax or email tomorrow it will be accepted and follow with hard copy.You have genuine reasons for this late submission and even more for the disgraceful treatment you have been given particularly by the Claimant and not forgetting that DJ.

 

Andy

[Shazza50]

Thanks Andy, I have just got out the Notice from the Land Registry, I must admit to not reading this properly as I thought this was just a formality that had to be sent. This is dated 21st April and after reading it properly this time:oops:, it says that if I object I had until noon 18th May otherwise the application will be completed. How does that work then when I haven't had the hearing yet?

[AndyOrch]

Hi Shaz

 

That just means the application is complete the Hearing is to determine whether the ICO will be mad a full CO.

You have all the ammunition to present a good case and to argue why it should not be the case.

 

Andy

[Shazza50]

Looks like a late night for me then as I have work tomorrow so really need to do it now I quess. I will post it up as soon as I can, hopefully in time for it to be checked over before I need to send it.

[AndyOrch]

Use Cymru,s as your frame and copy and paste. Your main points will start with

the General Order refer to it refer to your conversation with the Court Staff refer to it being passed to the DJ for further directions

and refer to no response from the Court.

 

You will need to include that you made offer of £x pm and supported by your I&E

this was totally ignored by the DJ and referred to people who use the INTERNET to avoid paying their debts.

( Condescending **** ) leave that bit out:oops:

 

You will refer to how the Claimant made no contact for 5 months except to inform you of the ICO

etc etc .Use Cymru.s points that suit ie joint mortgage (your debt) get the idea Shaz?

 

Regards

 

Andy

[Shazza50]

You will need to include that you made offer of £x pm and supported by your I&E

this was totally ignored by the DJ and referred to people who use the INTERNET to avoid paying their debts.

( Condescending **** ) leave that bit out:oops:

 

 

Andy

 

Awww, you sure I should leave that bit out:-)

Should I really mention that he said that about people using the internet? I don't want to end up in the stocks

[AndyOrch]

Up to you your pitch but i know i wouldn't walk out that hearing until all had been revealed

and the contempt you was exposed to.The stark reality is Shaz CO (or restriction) are notoriously difficult

to stop (not impossible) even so more when you are not up to speed whats going on, and been treated unfairly

and kept in the dark.The small amount involved should be rejected after all who would take out a secured loan on that tad amount.

It is by deception that you now find yourself in this position not purely down to the claimant but the DJ who blatantly

didn't instruct you clearly or instruct vis a vis the General Order.

Dont forget to refer to the case notes and your conversations with the Court Staff and that it was put again before the judge to clarify

and he failed.

 

Best of luck but wish it hadn't been last min like this (again)

 

Regards

 

Andy

[Shazza50]

Working on it now Andy. Got my paperwork out.

I did post up about it in my original thread but was just referred to the sticky on charging orders, and the more I read it the more I thought I didn't stand a chance. Then once again you have come to my rescue and helped me make the decision to try and do something about it, albeit last minute.

[AndyOrch]

Ii wasn't aware you had been issued with the ICO but it pays to go through everything to do with legalities with a fine tooth comb.

The secret here is knowing the process and your rights.You was never afforded the opportunity or given clear direction on how to deal

with the CCJ payment arrangement and as it was fudged, the Claimant thought fair game lets slap on a CO for good measure.

 

Your objections are different and in addition to Cymru.s defence because you were denied the opportunity to make payment.

Now the next DJ may state well why didnt you approach the Claimant re payment arrangements and your defence will be you was waiting for clarification re the order

which never materialised and quite rightly waiting for the Claimant to confirm details.

 

Dont work too late Shaz but make sure you have a draft and argument ready to present.Do try to attend or it will be rubber stamped

even with your submission.

 

Andy

[Shazza50]

Well here it is, I've already had to send it by email so I hope it will be ok.

 

Defence

1. I Shazza of xxxx xxxxxxx am the defendant in this action and make the following statement as my defence to the application for a charging order made by Hillesden Securities Ltd.

 

2. On the 8th November 2010 a County Court Judgement was awarded against me in favour of Hillesden Securities Ltd.

 

 

3. At that time I could only realistically afford to pay £1 per month which was supported by my Income and Expenditure sheet. Unfortunately District Judge xxxxx declined to look at this information and said it was not for him to decide how much to pay, he also passed a remark about people using technicalities and forums on the internet as a means of getting out of paying debts. I explained that this was not my intention, I merely wanted proof that Hillesden Securities had the right to collect this debt.

 

4. I received a General Form of Judgement or Order dated 15th November, which stated ‘There be summary judgement for the Claimant in the sum of £xxxxxxx’. As it did not state Forthwith or give directions for a means of a payment plan I contacted the court office for clarification. The person I spoke to had not come across an order of this kind before and did not understand the meaning of it so she advised me to write a letter to the court for clarification. Unfortunately the first letter did not arrive at the court so I sent another one which was dated 13th December.

 

 

5. I received a reply to my query dated 13th January 2011 which stated ‘This was placed before District Judge xxxxxx who has made the following comments: “No directions required, place letter on the court file”.. As this was still not clear to me, I again contacted the court but once again the court staff did not understand the order. I believed by this time that it was also too late to apply for a redetermination

6. Hillesden Securities Ltd have made no contact with me since the County Court Judgement was granted in November 2010 with regards to any suitable payment arrangement. The only contact they have made has beento inform me that they applied for the Interim charging order 6th April 2011 in a letter I received dated 20th April 2011.

 

7. Following a review of charging orders by the Office of Fair Trading in 2010, it was stated in their press release on 22 November 2010:

 

 

‘2. A charging order is one of a number of enforcement methods available to creditors to ensure that judgment debts are satisfied. A charging order can only be applied for where a court judgment has already determined that a debtor owes money to the creditor, and payment under that judgment is not forthcoming.’

 

I was not given any opportunity to make any payments

 

According to 'Section 86(1) The County Courts Act 1984:

‘Where the court has made an order for payment of any sum of money by instalments, execution on the order shall not be issued until after default in payment of some instalment according to the order.’

 

I was not given the opportunity to pay by instalments as District Judge xxxxx said it was not up to him to make that decision.

 

 

8. I believe that I have been at a disadvantage since this County Court Judgement was awarded against me due to the lack of information I received from District Judge xxxxx to clarify exactly what manner of order was made. If I had received the correct information I would have acted upon it before it had got to this stage.

 

9. . My husband xxxxxx has joint interest in this property and would be prejudiced if a Charging Order is applied to a property for a debt which he does not owe.

 

 

10. This has been the family home for 26 years and I do not anticipate selling it in the future. At present my children all live at home.

 

11. Due to a small change in my financial circumstances I am now in a position to offer a payment of £xx per month.

 

not sure why the typing has got smaller towards the end, its not like that on the original.

[AndyOrch]

Thats fine Shazz

 

Now you have something to base your argument on and refer to.Simply not attending or challenging

something that is is quite wrong tends to leave a bad taste in ones mouth.

If you do have to go down go down fighting costs you nothing and you will feel better even if it dosent go your way.

 

Andy

[cymruambyth]

Hi I hope my defence helps, I pposted it to give others something to work from. I cannot match the knowledge and help of andy, I just know that when I was researching I was told to attend and to fight.

If you can get the time off, take copies of everything that supports your case and write down what you would like to say in your own words in addition to your formal statement/defence. take copies of proof of postage and the names of anyone that you may have spoken to in court. Don't forget to submit a statement from your oh also opposing the application.

I was told that there would be no-one there from the DCA, however I think it seems a sort of training process for young lawyers (either that or I am getting very very old) as I was opposed by someone who went in with lots of notes and couldn't counter the DJ's arguments..

Good luck

[Shazza50]

Thank you Andy, I have managed to get a couple of hours off now so I will be back next week to let you know how I got on.

[AndyOrch]

Hi I hope my defence helps, I posted it to give others something to work from. I cannot match the knowledge and help of andy, I just know that when I was researching I was told to attend and to fight.

If you can get the time off, take copies of everything that supports your case and write down what you would like to say in your own words in addition to your formal statement/defence. take copies of proof of postage and the names of anyone that you may have spoken to in court. Don't forget to submit a statement from your oh also opposing the application.

I was told that there would be no-one there from the DCA, however I think it seems a sort of training process for young lawyers (either that or I am getting very very old) as I was opposed by someone who went in with lots of notes and couldn't counter the DJ's arguments..

Good luck

 

Thank you Andy, I have managed to get a couple of hours off now so I will be back next week to let you know how I got on.

 

 

Thank you Cymru for your input and for the use of your defence

 

Shazza chillax for now but keep your thread updated if anything transpires.

 

Regards

 

Andy