business premises rent CCJ **WON SET ASIDE**

[erinbrooke]

PLEASE can someone offer me some experience??

 

Basically what has happened is:

 

I had my own company for 7 years and had signed a lease with a large development company for business premises. Without knowing it the lease had included a Personal Gaurantee:mad:

In July 2007 I was forced to close the business due to the on set of the current financial crisis which resulted in a severe lack of work for my firm and extreme cautiousness from my bank:(

I immediately tried to contact the landlord, via phone and email, to explain what had happened and that I had vacated the premises. He ignored me. I then paid a solicitor to write three letters to them in an attempt to resolve the outstanding rent, approx. £4,500. He also ignored my solicitor.

As I thought I had made every effort to resolve the matter, I took the stance that if he wasn't bothered, then I should just get on with trying to re-build my life...

Then out of the blue in April of this year, I received an email from him with a CCJ attached asking how I was going to pay the £15,500 I owed him He has kept the rent running until the end of 2008. His solicitor had been writing to an address I hadn't lived at for 6 years.

I immediately rang him and asked why he had ignored me for so long, to which I did not get a response.

As I have been unable to afford a solicitor to act for me, I have applied to have the CCJ set aside, based on the landlord's non conformance with the Civil Procedure, as he had written to the wrong address and that I had made every attempt to contact him.

The application is up for a decision tomorrow, 21 August, and he has just emailed me his defence - which is obviously in 'lawyer speak'....

 

Can anyone help me out here? If my application to have the CCJ set aside is turned down can I appeal?

 

Any guidance would be GREATLY appreciated as I'm really concerned.

[42man]

Hi EB....if you have proof that you were at a different address when the claim was issued then you would easily get it set aside... - Removal of CCJ's - Step by step guide to the process

[42man]

I'm not too familiar with commercial debts but you might find something useful in this thread - http://www.consumeractiongroup.co.uk/forum/legal-issues/206935-court-1st-july-need.html

[erinbrooke]

Hi and thanks 42man, what constitutes proof?

 

I've obviously already filed my application with the courts and they have lodged their defence today - and as the closing date for correspondence is 21 August (tomorrow) I imagine it's too late to do anything now:(

 

What is the likelyhood of it getting set aside - is it a black and white situation, i.e. regardless of the legal jargon this flash solicitor has written in his defence, will it get set aside as I never received any paperwork??

 

Will the fact that they have had details of my solicitor AND had my email address cut any cloth with the judge? He has based part of his defence on the fact that Royal Mail never returned any of his letters :?

 

The solicitor did write to me last week and asked if I would meet them around the table, outside of court, to resolve the matter. Somebody has suggested that, as I now live in Scotland they will be worried it gets set aside and have to deal with Scottish law

[sam614]

Hi and thanks 42man, what constitutes proof?electoral role.

utility bills

 

I've obviously already filed my application with the courts and they have lodged their defence today - and as the closing date for correspondence is 21 August (tomorrow) I imagine it's too late to do anything now:(

 

What is the likelyhood of it getting set aside - is it a black and white situation, i.e. regardless of the legal jargon this flash solicitor has written in his defence, will it get set aside as I never received any paperwork??

 

Will the fact that they have had details of my solicitor AND had my email address cut any cloth with the judge? He has based part of his defence on the fact that Royal Mail never returned any of his letters :?

 

The solicitor did write to me last week and asked if I would meet them around the table, outside of court, to resolve the matter. Somebody has suggested that, as I now live in Scotland they will be worried it gets set aside and have to deal with Scottish law

 

SAM

[supasnooper]

Use utility bills, bank statements, driving licence, .... in fact anything official that will show you were not living at the address that the solicitors used for correspondence.

[erinbrooke]

Hi and thanks 42man, what constitutes proof?electoral role.

utility bills

 

Thanks sam614:)

 

Is it too late now to offer this proof?

[sam614]

take anything with you that has your address on.

as super say anything official.

[erinbrooke]

take anything with you that has your address on.

as super say anything official.

 

Take them where??

 

Should I be going to a court hearing??

 

I have not received anything from Hull County Court since I sent them my application - the only way I knew tomorrow was important was from emails received from the landlords solicitor......saying that this was the 'return' date

 

Now I'm really confused...:?

[erinbrooke]

I've just spoken to a debt management company (Payplan) about this one.

 

Apparantly, even if the CCJ does not get set aside, the landlord will have to apply to have the judgement moved to Scottish law as I am now living here??

 

If I still have a property in England, does anyone know i they can still obtain a Charging Order with me living in Scotland?

[surfaceagentx20]

You need to get hold of Hull County Court the moment the clock strikes 10:00am tomorrow. You will need to be able to quote the case number. Ask them what has happened with your application notice because your oponent is suggesting your application is to be heard on 21 August and you've not had any official notice from the court.

 

If they tell you there is to be a hearing find out what time of the day it will be heard. Tell them you've had no notice and (if the hearing is in the morning) that there is no way you could be there in time.

 

All the same, be prepared to have to go to Hull on Friday.

 

Am I right in thinking that the address to which the Claim Form was sent was an address in England or Wales but at the time it was sent, you were in fact living in Scotland? Did the landlord know you were living in Scotland? Did you tell him or did your solicitors tell him? Have you got documentary evidence that the landlord knew where you lived?

 

Last, I figure your landlord is resisting your application to set aside. If so, and in a nutshell, how does he put his case?

 

x20

[surfaceagentx20]

If I still have a property in England, does anyone know i they can still obtain a Charging Order with me living in Scotland?

 

Yep they can. So long as they follow the correct procedure.

 

x20

[erinbrooke]

Hi Surfaceagent,

 

Yes, the address they wrote to was in England, it was an old address of ours - but I was still living in England at the time, only at our new house..:?

 

I only have the fact that my solicitor wrote to them 3 times without a repsonse - so I suppose he could have wrote to my solicitor. He also had my email address, which can be proved by the fact that he sent me a copy of the judgement - so why had he previously not tried this as a way of contacting me??

 

Will I HAVE to attend court? only we live in the Northern Isles now and it's an incredibly long journey and expensive one?

 

They have resisted my application by stating that it was the only address they had (what about my solicitor?) and that their letters had not been returned by Royal Mail. They also fluff it out by waffling on in legal speak about how it took me 8 weeks from getting the CCJ forwarded to me, to applying to have it set aside(this was because of how long it took the CAB to advise me) - they have got me really worried as their defence, regardless that I know it's out of order, will sound plausible to a third party

[frettful38]

Oh jesus christ I really feel for you erinbrooke, I hope someone could help you out very soon. I know legalpickle would be able to give you some excellent advice but he is very busy this week.

 

In my opinion this landlord is probabaly not making as much as he used to and in the current climate he is trying to see what he can from anyone he thinks he can. I wish you the best of luck, and I wish I could give you some proper advice that would help you but I am do not have that much knowledge, so sorry.

 

If you could prove that you were not living there when all this happened this should at least be enough reason to have the judgment set aside. The CAB really should have helped you more in my opinion. But don't worry I am sure someone will be along soon to help.

 

Best of luck, and keep hope.

[erinbrooke]

The CAB really should have helped you more in my opinion.

 

That is what really annoys me, because the lad at the CAB said he was really busy and had a jam packed case file, I have suffered

 

He just told me to fill the form in and send it to Hull CC and that it would get set aside...

[frettful38]

Bloody typical, also I would have thought that the Defendant can have a claim transfered to their home town, did you not know this? Did anyone at the CAB not advise you on this?

[erinbrooke]

Yes, but the judgement had already been made by then.

 

Just a thought, but if it doesnt get set aside, can I:

 

a. appeal against the decision.

b. apply for a variation.

[frettful38]

As far as I know you should be able to appeal, as this is not a small claims I think the rules are a little different. If you give me a sec I will try and see if I can get the information for you.

 

Have a read of this in the meantime, just click on the link

 

http://www.aboutsmallclaims.co.uk/set-aside-judgment-court-hearing.html

[frettful38]

I don't know if any of this will help, but hopefully you will be able to learn quite a bit from it and hopefully get some good advice in time

 

PART 13 - SETTING ASIDE OR VARYING DEFAULT JUDGMENT - Ministry of Justice

 

When was the last time you had contact with the landlord?

[surfaceagentx20]

Fretful's kinda right in that under CPR 13.4

 

(1) Where

 

(a) the claim is for a specified amount of money;

 

(b) the judgment was obtained in a court which is not the defendant’s home court;

 

© the claim has not been transferred to another defendant’s home court under rule 14.12 (admission – determination of rate of payment by judge) or rule 26.2 (automatic transfer); and

 

(d) the defendant is an individual

 

the court will transfer an application by a defendant under this Part to set aside or vary judgment to the defendant’s home court

 

CPR 2.3 says:

 

‘defendant's home court’ means

 

(a) if the claim is proceeding in a county court, the county court for the district in which the defendant resides or carries on business; and

 

(b) if the claim is proceeding in the High Court, the district registry for the district in which the defendant resides or carries on business or, where there is no such district registry, the Royal Courts of Justice;

Trouble is, since The Ministry of Justice messed with the CPR concerning service of the claim form so as to permit service in the United Kingdom, there have been no corresponding changes to take account of the fact that a Defendant living in Scotland will not have a county court in the district in which he resides or carries on business and may therefore be compelled to attend a court 100s of miles to the south.

 

I take it you gave a Scottish address in your application to set aside judgment? But if I understand you, when the proceedings were issued earlier this year, you were then living in England. In other words, it is only in the last few months say that you have moved to Scotland?

 

When you call the court tomorrow, point the court office to the provisions of CPR 13.4 and insist the case be transferred to your home court (wherever that may be). Ask them to tell you what the name, address and telephone number of your home court is. Tell them all about the journey difficulties and ask the court officer to explain how the court dewals with such a situation justly. That should cause them to scratch their head a whilw why they ponder the grave injustice this situation is causing you.

 

x20

[erinbrooke]

They wrote to me last week asking me if I wanted to meet them and resolve it around the table.......

 

As I can not afford a solicitor and the CAB lad is that busy I can't get him to ring me back, I have erred on the side of caution and not responded.

 

They said that they were very confident that they would be successful in resisting my application. Which begs the question, why did they want to meet with me??

[erinbrooke]

When you call the court tomorrow, point the court office to the provisions of CPR 13.4 and insist the case be transferred to your home court (wherever that may be). Ask them to tell you what the name, address and telephone number of your home court is. Tell them all about the journey difficulties and ask the court officer to explain how the court dewals with such a situation justly. That should cause them to scratch their head a whilw why they ponder the grave injustice this situation is causing you.

 

Cheers for your help SA and frettfull - SA, am I correct in assuming that what you have said above is in relation to my 'setting aside' hearing. In other words can I get that transferred to Scotland at such short notice?

[frettful38]

Oh this is like de ja vous for me and this story of yours is bringing back my own nightmares I had with my xxxxxxx landlord. If they were so confident they would win why would they want to meet with you. Be careful, very careful. Why they want to meet you is that they want you to come to some sort of an arrangement, scare you, ruff you a bit (not physically that is ) then get you to sign to something on their terms.

 

Take my advice and for the love of God do not even try to attempt anything like that without proper advice. I was in a similar situation like you over 10 yrs ago and even up to today I carry the scars.

 

If he can contact you by sending you the ccj by email then he knew where you were or knew how to contact you somehow.

[erinbrooke]

If they were so confident they would win why would they want to meet with you. Be careful, very careful. Why they want to meet you is that they want you to come to some sort of an arrangement, scare you, ruff you a bit (not physically that is ) then get you to sign to something on their terms.

 

This is exactly what my wife and I thought - their letter was so damn cock-sure and slightly threatening and we thought WHY are they even bothering to write if they are so confident??

 

I received an emailed copy of their defence today and a covering letter informing me that they would be forwarding new costs relating to the defence to my application

[frettful38]

They are probabaly trying to scare you the swines. Anyway like surface agent advised ring the court tomorrow and get the name of whoever you to speak and make a note because you never know.

Try not to worry too much, because like you said you did try your best, and the judge would want to know why the landlord took so long in contacting you even though he had your email address.

 

What is the date of the judgment? or have you already mentioned it?