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indebtandharrased

Help require with Default Judgement/Redetermination/Set Aside/Interim Charging Order/Final Charging Order

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This is horrendous and a procedural/administrative error by the court, subsequently admitted by the court that has as a result caused you considerable distress.

 

Not heard of this before (although it must happen quite regularly I would imagine) and personally I would write to the court manager detailing the facts (as simply and concisely as possible to hold their interest) and ask that this is reviewed as a matter of urgency as the implications for you are severe.

 

Perhaps worth including that your case was entirely credible and with merit deserving of the courts proper attention (if you have an invalid default notice) and as such the court has failed you and not provided you with your right to a fair hearing.

 

If the court manager does not deal with this properly I'd then take it higher, they won't like that at all. Finally, don't admit to anything, that'll just give them an excuse to try and justify what they've done.

 

Quite simply the court issued the wrong document, you had every right to take the courts order for what it is and you then acted in good faith on what turned out to be entirely incorrect info. Outrageous :-x.


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i cant see that writing to the court will change anything

 

the other side have won the case and you cant simply ask the court to change their decision without the "other side" being able to challenge your application

 

(i suggest you would be the first to complain if the court and the creditor discussed and came to a decision against you without your knowledge)

 

the correct course of action would be an appeal - upon which based on the facts you have stated would seem to be a good chance of success

 

what i am not clear on (and inexperienced) is to what extent your "admission" has damaged your case

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Thanks DD.

 

Yes I agree, I don't think a letter would do much good either, but as I am now not sure of the procedures avaiable to me I am trying to explore everything!

 

CPR 14.1(5) appear to give the right to apply to have an admission withdrawn - whether you can do that after a Judgement and to which court and in which form I am not clear on.

 

Clearly the admission was based on false testimony and evidence produced by the Claimant and fresh evidence has brought that to light, so I hope that in the interest of Justice some court would allow me to expose this - the court process has been abused afterall.

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Hi IDAH

 

Goog thinking but I don't think it will hold up. Once the court realises it's error, it would act to correct it. It would not re-instate the error.

 

What I was thinking is that if the court will ignore my admission because I made it by mistake, then the Judgement made could no longer be based on that admission. It would either have to be a Summary Judgement or Judgement in Default (I think). In which case I could apply for set aside... See what I mean?

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What I was thinking is that if the court will ignore my admission because I made it by mistake, then the Judgement made could no longer be based on that admission. It would either have to be a Summary Judgement or Judgement in Default (I think). In which case I could apply for set aside... See what I mean?

Hi IDAh what I meant here was that it is unlikely the court will change it's own erroneous Judgement Order, having already discovered it as an error, just to give you the opportunity to appeal. Once they realise their mistake, they will (and should) act to correct it.

 

However, the impact of their error in the process of justice would be taken into account in allowing you to appeal on any basis going forward as per emandcole's post #51 for example.

 

As DD has said, you have more than a good chance, IMO, of a successful appeal though I've tried not to comment too much on the process for that as I don't have much experience on it.


The matrix is intrinsically flawed. Within it is the program for it's own destruction. If you are reading this, you are in the matrix and it's days are numbered...so watch out! :eek:

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I called the court this morning to ask what judgment was originally entered and to ask for a copy of the N225 submitted by the claimant asking for judgment.

 

I was told I would have to write and ask for a copy of the N225 and a judge would have to approve it - i.e. it's not something I am automatically entitled to.

 

HOWEVER they confirmed that the judgment entered against me is Judgment in Default and gave me the reason for that judgment; the judgment entered on the court records is NOT judgment under admission and therefore what the Claimant's barrister argued at the set aside hearing was erroneous and I think deliberately meant to mislead the court.

 

So, procedurally, what do I do now?

 

Do I simply write to the court? Or must I begin an appeal?

 

If I need to appeal I have maybe 13 days left to do so, though I haven't received anything from the court following last Tuesday's (20th) Hearing.

 

Help!

Edited by indebtandharrased

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Hi IDAH, have subbed and will read through thread a little latter.

R

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Just a very quick reply that think is very relevant. I picked up on a post that said you were told that there is no CPR that allows a set aside of a Judgment by Admission. You were not trying to set aside a Judgment by Admission, you were applying to set aside a Judgment in Default of an Acknowledgment of service. CPR 13.2 is your friend as you appear to have used 13.3 where you must show that there is a reasonable prospect of defending the claim. In 13.2 no such test applies.

 

Cases where the court must set aside judgment entered under Part 12

 

13.2

 

The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly entered because –

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

 

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or

 

© the whole of the claim was satisfied before judgment was entered.

 

12.3

(1) The claimant may obtain judgment in default of an acknowledgment of service only if –

(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and

 

(b) the relevant time for doing so has expired.

 

IMO you have a good chance of success if you appeal as the DJ was wrong to just consider CPR 13.3 as DJ must set aside by 13.2. Forget about the DN at moment as it is irrelevant.

 

R

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Further info on your admission. An appeal to set aside the default judgment is one thing and the admission is another. If you decide to appeal you are able to make other applications to be considered at time of appeal. You will need to apply for your admission to be withdrawn and you would ask that this application is dealt with at the appeal hearing imediately after the appeal should you win. This will get the admission withdrawn at that time and will stop claimant applying for judgment by admission.

 

Did you get permission to appeal at the set aside hearing? If not don't worry as you would apply for permission at same time as appellants notice filed and served. Suggest you get onto court asap as you will need the order being appealed

R

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Thanks Robin

 

However, I am still unclear on the position regarding the orginal Judgment and what may happen to it as a result of the order(s) made on 20th July. As you say I need to know what the Judge has finally said.

 

Is it possible the Judge could change the judgment that has been entered regardless of the circumstances? The clerk was quite clear on the phone to me today that the Judgment in Default was correct for the situation - but without seeing what judgment the Claiment requested on their N225 I cannot be 100% certain.

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The thing is you went to court with an application to set aside a default judgment that was wrongly entered. You made the application and therefore any other order made by the DJ was against your application. CPR 13.2 is clear that judgment MUST be set aside, there is no other option unless you agreed to or applied for a variation of the judgment.

 

IMO it really doesn't matter what the judgment was at the set aside hearing. If it wasn't to set aside the default judgment, you lost and the judgment is wrong and as in my case, can be successfully challenged. However the process is not easy.

R

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Robin is right - as it was a judgement in default, you just apply for a set aside under CPR part 13


Steven

 

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Just read from post 38 again. My earlier posts stand. It doesn't matter whether the claimant applied for judgment to be entered in default or if court made a mistake, CPR13.2 is clear.

 

I think you need to decide whether you want to take action to get the irregular default judgment removed or whether you just accept it and keep making agreed payments against the judgment secured by the charging order. Only you can make such a decision.

R

 

Thanks Steven

 

But have you read from post 38 onwards what has happened?

  • Haha 1

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No I haven't - at least not recently and haven't got time now - sorry. But Robin is here :)


Steven

 

Using CAG Toolbar will generate much needed income - Download Here

 

Confused by Simple Interest? Confounded by Compound Interest? Read my Interest Tutorial

My Wins

 GE Money Won unconditionally May 2007

NatWest Won unconditionally August 2007

Brighthouse Won unconditionally August 2007

Goldfish Won unconditionally April 2008 (including CI on the basis of Sempra)

Clydesdale Financial Services (now BPF) Won unconditionally February 2008

 

Any opinions are without prejudice & without liability. Do not take any legal action on my advice alone. Almost everything I know concerning the law I learned from this site.

 

Please note, I will not give advice by PM. Please send a link to your thread and I will do my best to answer there.

 

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As the status/class/type of the original judgment is unclear, I have written the following to the court today:

 

Date: 29th July 2010

 

The Court Manager

 

CLAIM NUMBER: XXXXXXXX

 

Re: Judgment in Default dated XXh June 2010

 

Dear Sir

 

Some while ago I received a Judgment in Default dated XXh June 2010 sent out by your office.

 

At a recent hearing to consider setting aside that Judgment I was told by the Judge that the judgment had been ‘sent out on the wrong form’ and the judgment was not, in fact, a Judgment in Default.

 

To confirm this, yesterday (28th July 2010) I called the Court Office to make enquiries about this judgment and was assured by one of your office staff that the judgment was indeed a Judgment in Default.

 

So now I am confused as to the true status of this judgment as I was told one thing by the Deputy District Judge and another thing by one of your staff, so I am asking you to please confirm in writing if the judgment was, or was not Judgment in Default. If in your reply you could give as much additional supporting information as possible I would be grateful. For example, the date on the N225 form that would have been sent to the court by the claimant, and the date the N225 was received by the court and whether the claimant had ticked box A or box B on the N225. If you could let me have a copy of the N225 – for which I would be prepared to pay a copy charge – then that would perfect.

 

Please can you let me have your reply as a matter of urgency and certainly within 7 days, as I only have a limited time to make any appeal, which would require me to establish the true facts of this matter and which facts only you can provide me with.

 

Yours faithfully

 

IDaH

 

I feel that without this information, any application for an appeal would be foolhardy.

 

What do you think?

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Sorry IDaH, I totally disagree. You have a judgment in default entered against you, is that correct? You filed an acknowledgment of service in time, is that correct? You made an application to set aside the Default Judgment, yes? Did the claimant attend the set aside hearing and object to the set aside?

 

It is totally down to you what you do, but I don't think the letter will help you at all. Because you have a Judgment in Default of replying to the claim when you did, you have a cast iron case. The only way forward if you want to challenge this is to appeal. Don't forget, the clock is ticking and if you are to appeal you should be preparing your appellants notice now. The most important part of the appellants notice is your Grounds of appeal. If it was me I'd be chasing the court for a copy of the judgment of the hearing you are to appeal. I would not send the court a letter and wait for a reply as time will run out. Please get other opinions and then you must decide the course of action you want to take.

R

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Sorry IDaH, I totally disagree. You have a judgment in default entered against you, is that correct?

I don't know - the Judge said not - a court worker has since said yes. Who should I believe?

 

You filed an acknowledgment of service in time, is that correct?

Yes

 

You made an application to set aside the Default Judgment, yes? Did the claimant attend the set aside hearing and object to the set aside?

Yes to both

 

It is totally down to you what you do, but I don't think the letter will help you at all. Because you have a Judgment in Default of replying to the claim when you did,

As I understand it, I could ONLY be in default of 1) not acknowledging the claim 2) not submitting a defence in time or 3) not appearing in court. The Court Office says I was defaulted for not completeing and returning the Allocation Questionnaire in time; If they issued an allocation questionnaire (which they did) this means they know I acknowledged and know I submitted a defence. I also was in court on the day allocated for the summary judgment hearing. I HAVE NO IDEA (without asking) what they are on about - but GUESSING is surely not a good idea, in my opinion.

 

you have a cast iron case. The only way forward if you want to challenge this is to appeal. Don't forget, the clock is ticking and if you are to appeal you should be preparing your appellants notice now. The most important part of the appellants notice is your Grounds of appeal. If it was me I'd be chasing the court for a copy of the judgment of the hearing you are to appeal.

Isn't that the original judgment? In which case I have one - the one the DDJ said was sent out 'on the wrong form'. You don't, I assume, mean the order from the set aside hearing (I think that's what you said above?) In which case, I waved the original judgment I received in front of the Judge - and she had her own copy - at the set aside hearing, and she STILL said it was simply on the wrong form!!!

 

I would not send the court a letter and wait for a reply as time will run out. Please get other opinions and then you must decide the course of action you want to take.

R

 

I take on board what you have said - but if a Judge says that the Judgment was NOT in default and therfore there is no procedure under CPR 13 I can use to requeat a set aside - what am I to do (other than appeal)? An appeal can be costly - and I want to be sure of the facts - i.e. WHAT the original judgment actually is - i.e. default/summary/something else.

 

I have no clear definition - from you, anyone else or from extensive research of the CPRs and Practice Directions - of what a judgment 'entered wrongly' means. Does it include court administrative errors? Or does it mean simply what Judgment the claiment (wrongly) requested?

Edited by indebtandharrased

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You should have the original judgment and it is that you must be working from and if the original judgment, no matter who made the mistake, is Judgment in Default of Acknowledgment of Service then that is what it is.

 

You need both the original Default Judgment and the Judgment made in the set aside hearing to appeal. When you phoned the court, did you phone the local court or the court that entered the original judgment. If it wasn't the court that entered original judgment then phone them.

 

Also, did you post earlier that claimant has a charging order? If yes, look at the Interim Charging Order as that will refer to the judgment that allows them to obtain the ICO.

 

Also, What did you put in your application to set aside? Did you not state you were applying to set aside a Default Judgment that was wrongly entered?

 

The Judgment against you is either right or wrong. You need to act quick to resolve it if you chose to do so and yes it can be costly in many ways, not least the stress in making sure everything is done correctly and on time.

R

Edited by RobinWayRobinme
Just added more

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You should have the original judgment and it is that you must be working from and if the original judgment, no matter who made the mistake, is Judgment in Default of Acknowledgment of Service then that is what it is.The document sent from the court - the one I am working from - says simply Judgement in Default - it does not say in default of acknowledgement (or anything else).

 

You need both the original Default Judgment and the Judgment made in the set aside hearing to appeal. Somehwere above in this thread I was told that at a set aside hearing there IS no judgment - just an order or orders made. Is that true, or not? I am relying on posts from this thread to procede, and if I get conflicting answers you will, hopefully, understand my reluctance to rely on what one poster says over another.....

When you phoned the court, did you phone the local court or the court that entered the original judgment. If it wasn't the court that entered original judgment then phone them. As soon as I submitted a defence (following acknowledgement) the case was transferred to my local court. The Judgment in Default came from my local court The hearing for set aside was in my local court. I called the local court yesterday - where the original judgment was made - to establish whether or not the judment was a Judgment in Default - or not.

 

Also, did you post earlier that claimant has a charging order? If yes, look at the Interim Charging Order as that will refer to the judgment that allows them to obtain the ICO. The Interim Charging Order refers to the judgment I am talking about - there has been no other judgment.

 

Also, What did you put in your application to set aside? Did you not state you were applying to set aside a Default Judgment that was wrongly entered? No. I did not KNOW it was wrongly entered. In fact I do not NOW KNOW if it was wrongly entered, because I don't know WHY a default judgment was entered. Do you? Can you say it was wrongly entered from what you have read here?

 

The Judgment against you is either right or wrong.

Very true - but which?

R

 

I have answered all your points above to the best of my ability and knowledge

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Wow

 

This seems quite incompetent from your local court. They should be able to provide you with written clarification, one way or another.

 

You may want to take both Judgemets - your original one and any new one from from the Set Aside hearing to the court and ask the court manager exactly what you should do, under the circumstances. They won't (can't) give legal advice but they can certainly help with clarifying procedure.

 

If the court acknowledges it's error, they should let you apply for the Set Aside without insisting it is a Judgement on Admission.

 

If the court insists the Judgement in Default is in fact a Judgement on Admission and therefore cannot be Set Aside under CPR, then it will have to be an Appeal against the original judgement and would involve withdrawing your earlier admission in error.


The matrix is intrinsically flawed. Within it is the program for it's own destruction. If you are reading this, you are in the matrix and it's days are numbered...so watch out! :eek:

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I have highlighted your very first post where you say Judgment in default of not replying to claim. Your set aside Application was based upon CPR 13.3 and the threshold there is based upon the merits of your defence. As I have said from the start, your set aside and your appeal should have and should be made under CPR 13.2.

 

I will point out that I am not a lawyer and subject to other opinions on this from the forum I can offer you little else at this time.

R

Hi

 

I hope I'm not too late to do something about a recent CCJ (in default)

 

Background:

 

Fairly recently I was taken to court for a credit card debt. Having checked in here first (you will see I joined in October), I initially defended with an 'embarassed' defence as I received only basic particulars of claim issued through Northampton Bulk Centre - having made a request under CPR31.16 for a copy of the alleged CCA which did not arrive until after my deadline to file a defence. My actions of requesting under CPR31 and submitting a defence provoked the familiar abusive, bullying, intimidating communications from the Claimant's solicitors.

 

After a month or so they finally served a more detailed POC and I received my copy complete with their court bundle evidence/exhibits. They were seeking Summary Judgement.

 

Shortly before the deadline for me submitting my amended defence I lost my resolve and caved in and submitted my N9A admission, asking for time to pay, to the court and the Claimant's solicitors. I attended the hearing, as I had not been informed it was cancelled, so that I could put my case to the DJ. The Claimant had contacted the court on the morning of the hearing to say it wouldn't be necessary - surprise surprise they didn't tell me and so wasted half a day of my time.

 

Just over 2 months later I have received a CCJ against me (in default) statingXXXXXX "You have not replied to the claim form"XXXXXXX. I thought I had by returning my N9A and on calling the court they agreed they had all the papers in the court file?

 

After a couple of days of research to find out what I could/should do, and within the 14 days permitted, I wrote to the court manager requesting a re-determination hearing, as I cannot afford to pay the amount on the judgement in one lump (suffice to say it is over £8,000) and I wanted to make the points I was going to make to the DJ at the previous hearing which was "cancelled" by the other side. I had already requested time to pay on my N9A; I'm still not sure why this hadn't been taken into account when the Judgement was given?

 

On receiving the Interim Charging Order (with notice of a hearing in less than a month) I began researching how I could/should respond at the hearing. However, I also took a fresh look at the Claimants POC and evidence, only to find that the Default Notice issued (or the copy of it they sent me and in the Court bundle) does not allow the required number of days - it's only a day short if sent first class, as they claim, or 3 days short if sent 2nd class. I spent some time yesterday and found the original DN - and the envelope. It was sent 2nd class!

 

This brings things up to date, more or less.

 

Moving on:

 

During this week and over the weekend (so far) I have been trying to decide what to do, and in what order. Can any of you help me please?

 

I propose:

 

1) to apply for the Judgment in Default to be set aside, with a XXXXXXdefence that bringing the claim to court was unlawful because the DN is deffectiveXXXXXXXXXX

 

2) to ask for the above to be heard on the same day but before the hearing for the Final Charging Order, so that should the set aside be granted there will be no need to proceed with the Final Charging order and the interim charging order can be disposed of

 

3) Should I not succeed in having the judgement set aside, to have the re-determination hearing I have requested follow the set aside hearing, but preceed the Final Charging Order hearing, so that I will hopefully have a Judgement giving me time to pay. This would mean that if I did not miss any payments ordered by the court I could ask that if the Final Charging Order was given that there could be conditions attached to the Charging Order such that no Order for Sale could be sought by the Claimant if I was keeping up the payments agreed in the Judgement.

 

I think that covers it. I guess, if I could, I would like to simplify the above schedule by not having all of these issues dealt with in court inside a month. If I can't I can see me spending huge amount of time over the next couple of weeks doing nothing but preparing my cases and papers for court.

 

So, first I would ask for any comments and guidance about the sequence of events so far and what I propose and if there is any way I can ask the court for more time to prepare for the possibly 3 hearings.

 

Secondly, any help and advice with winning a set aside of the Judgement

 

Thirdly, same as above but for re-determination

 

Fourthly, fighting the Charging order and avoiding any possible order for sale that might follow.

 

I know I am asking a lot - but please help with your best advice if you can.

 

Thanks

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OK

 

Here is the latest Judgment which arrived in the post this morning.

 

Please can anyone comment on item number 4.

 

It seems complete nonsense to me - how can a judgment be both on admission and in default? And what should/can I do about this judgmet? It seems that for a set aside I would have to have used CPR13 and CPR14 and now an appeal is the only route - but do I have sufficient grounds, based on item 4 of this ruling, if I have a valid defence (which I think I do)?

 

Your rapid replies would be appreciated as I have less than a week to request leave for appeal.

Copy of Judgment.jpg

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I hope you can read this better - the system of image uploading to the forum seems to have changed since I last used it - also I can no longert edit my posts![ATTACH=CONFIG]20678[/ATTACH]

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