Link have a ccj and CO MBNA Card which I am keen to have set aside or appealed

[RobinWayRobinme]

Hi Atom

You seem to have ben treated similarly to most caggers where dca's are involved. I am sure there ar other threads around that are very similar to your set of circumstances, have a search. If I come across them I will post you a link. In the meantime, I'd suggest reading up on Part 13 of Civil Procedure Rules applying to set asides.

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

 

IMO you should focus on seeing if you fit any of the rules applying to a set aside. In my case, I am going through an appeal to set aside where at the permission to appeal hearing, I got the charging order thrown out.

 

Your main problem, as I understand, is you are not in the country at the moment. If you are to fight this as a LIP, you will need to appear in court yourself for any hearings or a solicitor/barrister can on your behalf (finding one that is knowledgeable in CCA and affordable is another story).

 

Something to get you started on. I have linked my thread as it all revolves around an unlawful judgement and charging order. http://www.consumeractiongroup.co.uk/forum/legal-issues/212396-trying-set-aside-judgement.html

R

[atom02]

Thank you for your input folks.

 

Bazaar, you are right and I fear I have lost too much sleep over the whole mess in the last two years. So when I came for a holiday last Sept. I decided to start undoing the mess and that's how I found this site. I am in a situation whereby there's the likelihood I will relocate back here in a month or so, or sell my property. Either way, with these vultures circling, I have to do something.

 

atom

Edited February 17, 2010 by atom02

[atom02]

Hi Robin,

 

Thank you so much. I have actually been having a read of your thread and it seems quite complex but there may be some similarities in our cases. It appears a default judgment was entered in my case either cos the Northants BPC does this automatically or the DCA asked for it even though they had an Admission & a request for time to pay. I guess in the latter case, the DCA had a duty to inform the court. I am trying to get the records from the court to establish which scenario occurred.

 

I will be back in the UK for an extended period (about 8 months) in about a month's time so I should probably press ahead and try to do as much as possible in advance and while I am there.

 

Will keep following your case too.

 

atom

[RobinWayRobinme]

Hi Robin,

 

Thank you so much. I have actually been having a read of your thread and it seems quite complex but there may be some similarities in our cases. It appears a default judgment was entered in my case either cos the Northants BPC does this automatically or the DCA asked for it even though they had an Admission & a request for time to pay. I guess in the latter case, the DCA had a duty to inform the court. I am trying to get the records from the court to establish which scenario occurred. DOESN'T MATTER. ITS RESPONSIBILITY OF CLAIMANT TO APPLY FOR JUDGMENT. IF YOU READ THE GUIDANCE NOTES FOR NORTHAMPTON CCBC, YOU CANNOT APPLY ONLINE FOR AN ADMISSION AND REQUEST FOR TIME TO PAY AT RATE DETERMINED BY THE COURT. ITS THE CLAIMANTS REPONSIBILITY TO FILE ON PAPER.

 

I will be back in the UK for an extended period (about 8 months) in about a month's time so I should probably press ahead and try to do as much as possible in advance and while I am there.

 

Will keep following your case too.

 

atom

Whilst it appears quite complex, your situation in respect of how they got default judgment is axactly the same as mine and like you, they obtained an interim charging order whilst I was trying to set aside(I lost). I have appealed and at the permission to appeal hearing as I was able to show the judgment was unlawful, permission was given and I asked that in view of the charging order being based upon an unlawful judgment it be set aside now. Judge agreed and set aside charging order there and then.

 

If you have a copy of your admission and request for time to pay and can prove this was served on claimant on time, you have a very strong case. There are no time limits and there is no way to side step this. see CPR 13.2(a)

Best of luck and I'll keep an eye on your thread

R

[atom02]

Phew!!! Thanks for that, I feel better already, dare I say ... I'll spend the weekend to research further and then take it from there.

 

Best, atom

[atom02]

I have removed the draft cpr request on post #21. If anyone who's reading is interested to see it, please let me know by return and I will re-post an updated copy.

 

atom

[atom02]

I haven't been back on here for a little while. I am reading through all the posts that I can find to figure out how I begin the process of setting judgment aside and what is required together with the application n244. Any help on this will be much appreciated.

[atom02]

If you have a copy of your admission and request for time to pay and can prove this was served on claimant on time, you have a very strong case. There are no time limits and there is no way to side step this. see CPR 13.2(a)

Best of luck and I'll keep an eye on your thread

R

 

I am completely devastated because my application to withdraw admission has been refused, primarily because 'it has gone too far' (the words of the judge) and I didn't apply sooner and CO has been in place for a while. This is despite the fact that there are clearly issues with the agreement and the DN. Please does anyone have any advice on how I can proceed?

 

As an analogy, surely it can't be right to imprison someone with no evidence simply because they accepted that they did some wrong and claim they can't now put forward evidence to allow their case to be heard properly if the decision to imprison them was wrong in the 1st place? Their fault if they didn't know to question any evidence at the time but isn't it still unjust to allow the judgment to stand?

Edited December 8, 2010 by atom02

[atom02]

Please I need some help with possibly filing an appeal but don't really know where to start - can anyone help? Happy to fill in the gaps but am conscious this is an open forum.

 

Does anyone know a good transcriber and what costs likely are? I know this should be the starting point but need some ( a lot of help)

 

atom

[IdaInFife]

Hi Atom,

 

I will amend your title and move the thread to the legal forum

[atom02]

Thanks, IdainFife.

 

Unfortunately, there are no takers. I guess I am stuck for real.

 

atom

[atom02]

Despite pleas for help it seems nobody would assist with this. I thought the idea of this site was that people help each other. Unfortunately I don't know enough to assist but always offer moral support. Please, please, please, this is now a desperate situation - can someone help????????

[citizenB]

Atom, here are some thoughts on the appeal process. These were posted by BRW some while ago. They may help.

 

BRW on Appealing

http://www.consumeractiongroup.co.uk...t-2927407.html

 

This is just some general advice on how to handle an Appeal (taken from one of my other ramblings elsewhere on CAG), which may be of interest to both you/Fred and any other genuine Caggers that may like to know.

 

Fred has 21 days to get his Appeal in, and whilst it may seem daunting, it's not as bad as it seems, provided he gets started and works through all of the steps to get everything ready in time for the 21 day Deadline.

 

This is the bit of CPR Fred needs to start reading:

 

PART 52 - APPEALS - Ministry of Justice

 

This is the CPR Supplement that goes with the above:

 

PRACTICE DIRECTION 52 – APPEALS - Ministry of Justice

 

A key admin step is to get a Transcript of the Judgement going. That should not be too expensive, maybe £100-£150 approx. You will need that for the Appeal. That needs Form EX107. Here's the link:

 

EX107

 

That is just a simple Form where you state what the Claim was, and say which Transcriber you will like to use. I can recommend a very good one, but I need to advise the name via PM not in open Forum. The person is listed in the Approved List of Court Transcribers and has been very helpful now to several Caggers.

 

If Fred can afford it, I would also recommend that he has the Full Hearing Transcribed in addition to the Judgment.

 

To clarify, the Hearing is always divided into two key areas when it comes to Transcribing the Tape(s):

• The Main Hearing (less the Judgment).
  

• The Judgment.
  

There can only ever be one Judgment Transcription, because the Judge has the right to check and adjust that, before allowing it to be released. In my experience, be prepared for some changes there to soften how things were actually said in Court! But there's nothing you can do, just get a copy of the Judgment, and allow time to organise that and be prepared that the Judge will want to see it to approve it, before Fred sees it. Best therefore to crack on with that ASAP.

 

I would advise trying to get the Main Hearing as well, although that will cost a lot more, depending on the number of spoken words and the time the Hearing took. But this can prove invaluable. Fred needs this if he can afford it.

 

Transcriptions can be paid for by the Court, if Fred is on a very low income etc, but he has to pay for them first before he can re-claim the costs. It also takes a long time to get any money back from the Courts.

 

On this subject, see CPR Part 52, 5.17 and 5.18 (that's all in the 2nd link above).

 

N460

 

This is a Form the Judge has to complete if an Appeal was requested and refused on the day. In that case, the Judge is supposed to complete an N460 straight away, rather than being asked.

 

So, if needed, get the Court to chase up the Judge to complete Form N460. That Form is very simple, and just sets out the reasons for refusing the Appeal. Those reasons may also be mentioned in the Judgment as well.

 

There will be an N24 Order that will appear soon too, that's a bit like a précis of the Judgment but should not be confused with the Judgment Transcription which will be much longer than what you see on the N24 Order. Fred will also need that N24 Order for his Appeal Application. That should arrive in the next few days anyway.

 

Fred should be able to get that lot underway in maybe a day or two at most, then you can work on getting his N161 Appellant's Notice ready.

 

The N161 Appellant's Notice is just another Form, many on CAG will help you with that, so don't worry. Here's the link:

 

N161 Appellant's Notice

 

That just leaves the key issues of:

 

(1) Grounds for Appeal:

 

This is the main bit that you need to get sorted within the 21 days, and have it ready to go along with the Appeal Bundle.

 

The main initial documents, provided you get them on time, will comprise the following bits:

 

N161 Appellant's Notice (including Grounds for Appeal)

N24 Order

N460 Reasons for Appeal Refusal (if needed)

Transcript of Judgment

 

It is VIP that you get that lot in within 21 days. Otherwise you risk having to make an Appeal Out of Time, which is a PITA. Get it in on time, and you then you have a further 14 days to follow on with the full Appeal Bundle.

 

That Bundle will include a Skeleton Argument and a routine pile of bumf that relates to the Judgment being Appealed. Most of the docs Fred will have had from the first time around, so the Appeal can be considered for permission to Appeal if that is also needed (i.e. if permission was refused at the Hearing).

 

(2) Route for Appeal:

 

This is just technical and will depend on what Judge you had, and the class of the Judgment the Judge made. It is all listed in the 2nd link above, or just click here:

 

PRACTICE DIRECTION 52 – APPEALS - Ministry of Justice

 

This is Fred's chance to put right what the buggers did wrong the first time out.

 

Get this right, and the opposition will be more worried than you are right now once they know you are Appealing.

 

The most this will cost Fred right now is the Judgment Transcription. He can always back out before the 21 day deadline and just accept the original Judgment, so do keep going and use the time to decide before the 21 days are up.

 

However, don't waste any time getting going, as 21 days is not long and you cannot afford to waste any of it.

 

Once the Appeal has been lodged, then you have 14 days to get the Skeleton Argument done, which is also key, but 2 weeks is a long time.

 

After that, it could take weeks/months to get to Appeal, and in that time you and Fred may be able to find the money for a Barrister who will take it over and take the battle back to them. If you win, you will get the original Judgment overturned, and you should get back all of the Costs, both for the Appeal, and also for the original Hearing.

 

A Barrister can later tweak your Appellant's Notice and your Skeleton, so your main aim is to get them in and good enough to get permission to Appeal (assuming you need permission, if the Appeal was not refused at the Hearing, then you may not need to ask for permission to Appeal and can just go ahead and submit the Appeal)...the Barrister can make the paperwork better later if you end up being able to afford a Barrister down the line.

 

Best of luck with this.

 

Cheers,

BRW

 

Sadly, a lot of people will have commitments at the moment and might not be around to help so you are going to have to do a lot of research and reading yourself.

 

CAGers who might be able to offer assistance are :

 

Rhia

DonkeyB

RobinWayRobinMe

emandcole

gh2008

car2403

foolishgirl

 

Those are just off the top of my head.. if I can think of anyone else, I will add them. If you send a pm with a summary of your situation and a link to your thread, if they can.. I am sure they will help.

 

HTH

 

[atom02]

CB,

 

I am very grateful to you for taking the time to assist with the notes. Unfortunately, am having a torrid time at the moment and although I saw your post last night, i simply couldn't reply.

 

I'll read, draw up a summary of things and drop a PM to the CAGGERS you've mentioned. Hopefully, one or most will be able to assist.

 

Thanks.

 

Atom

[DonkeyB]

Subbing

[DonkeyB]

Are any of the original docs available to view? They appear to have been removed.

[atom02]

Thanks, DB will post asap.

Am afraid I may have got myself in too deep

[DonkeyB]

Looking so far, I think you need proper legal advice on this. Seeing the docs will give a rounder picture.

[atom02]

can I PM you? Concerned the docs will be a dead giveaway...

[atom02]

here are the DN/s - I know they are defective

Default Notices.pdf

[DonkeyB]

You could post and take them off before Monday. PM is fine.

[RobinWayRobinme]

Hi Atom, got your pm

 

Need to go back a few steps first. What was your application that was refused? Was it to set aside based on non compliance with CPR's and wrongfully obtaining judgement in default or was it an application to withdraw your admissission? The reason I ask is that you can't withdraw your admission until you have the judgement set aside. You stated earlier on your thread that they obtained judgment wrongly albeit you made an admission. The correct proceedure to follow is application to get judgment set aside then application to withdraw admission. Can you confirm that this was the proceedure you followed? If not, canb you detail the applications you made and the order they were made in?

 

R

[DonkeyB]

I agree, everything seems to be out of order here. It needs to go back to square one – the account appears to have been sold ‘live’ so there’s a few avenues to look at.

 

Re the two DNs – did you satisfy the first one by making payment as requested? I’m trying to work out why they sent two.

[gh2008]

subbing - agree with the others we need *much* more info

 

posting the info IMHO will not prejudice your case at the moment but will help you get proper advice.

 

If at any time the info does prejudice it then you'll be told

[gh2008]

Hi DB