JCV facing Court Action mentioning Carey

[jcv_uk]

Well I had my day in Court but unfortunately it wasn't my day.

 

My defence was based on the fact that the claimant had failed to produce an original agreement or DN after a CPR request, the claimant wanted to charge interest on the debt both before and after judgement even though they had previously agreed to freeze the interest.

 

The DJ had given in his directions that originals must be brought to the hearing but the Claimant had confirmed the originals had been destroyed and that they were not obliged to produce them quoting the Cary case.

 

My argument was that Carey was to do with section 78 and not a CPR request.

 

At the hearing the judge decided that the Carey case was a valid argument and accepted that the copy agreement was sufficient, when I questioned it's vaility because the T & C's were on a separate photocopied sheet and there was no proof that the signed agreement and the T & C sheet were connected he said that in view of the fact that the debt was quite old and had been sold on twice that it was not surprising that originals were no longer available and he had to base his decision to allow the copy as valid on probabilities, he said he was satisfied the claimant had made every effort to produce the original and under a CPR request it was a valid argument if the claimant could not produce something that was not available, in that case and with the decision on the Carey case he accepted the copy as a valid document. As for the DN he said because the debt should have been paid years ago that the contract had effectively terminated anyway and so a default notice was not required to be produced.

 

He then went on to say that the way the claimant had dealt with this matter was questionable and had many shortcomings but it was out of the Court's jurisdiction to deal with that and any complaints should be addressed to the OFT. However he did refuse to allow any interest to be added to the debt.

 

Then he dropped a bombshell by giving judgement forthwith meaning that the debt was due as of the date of the judgement, he then went on to say that he would allow the claimant to make an application for a charging order (this was never even mentioned in the claim). He then ordered that the judgement could be paid at a minimum £xx per month which he based on my financial statement and what I paid to other creditors and that as long as the minumum payment was made that the claimant could not take any further action (i.e forcing the sale of my house, forcing me to increase instalments or demanding the whole debt at once). The judgement can however be reviewed in two years time if the claimant wishes to do so.

 

Oh well, what can I say. There is to be a further hearing where the DJ will grant the charging order, I was told I could attend but it would not make any difference as to the outcome.

[emandcole]

Did any of the 'copy' documents they used have your signature on?

[jcv_uk]

Yes, they were photocopies of the original

[spamheed]

Is there any wonder these parasites are repeatedly bringing claims with virtually no evidence when judges are handing down judgements in spite of the law

[emandcole]

Weak judges it appears. I wonder how the same law would be tolerated if it were the judges own son or daughter in court with various photocopies of alleged destroyed originals as 'proof' of the debt and its nature?

 

JCV - Did you put the claimant to proof as to the copies they had produced with requests for audits of document trails, data retention practices etc etc? I note your thread went very quiet prior to the case and that there was little on there discussion wise so wondering how prepared you felt you really were?

[jcv_uk]

Yes actually I did request proof after I had found out that the Claimant was not going to produce the originals. However this was totally ignored by the Claimant, and the DJ for that matter. In the Court the Judge started by saying that he had read all the paperwork and my statement thta I had prepared and sent in advance which outlined all my reasons for defending the Claim, quite detailed and well set out (Judges comments, not mine). But he was having none of that and was prepared, as I have said, to accept the Claimants reasons for not producing the originals. He also added that I was paying the debt and had acknowledged that I owe it so could not offer any reason for not making a judgement.

 

I expected a Judgement, and in one way I did win on the issue of interest but what really annoys me is this charging order. i have been reading up on this and as far as I can understand it I thought that a charging order could only be applied if I defaulted on the judgement debt. If this is the case I am of a mind to try and defend this when it comes to the hearing although the DJ did say that there was not much point in my attending as it would be granted anyway.

[Docman]

Open & shut case for appeal. The judge ignored the law. FUL STOP.

[emandcole]

Question is will there be an appeal or does another judge sink slightly lower in the pit of self gratification and ignorance?

[cups]

Hi

 

Judge lottery wins again, my assumption was that a CO could only be applied for after a person had defaulted on a CCJ, l would take advice on this one and not let them get one if you can. I await a response from the court for my case,,

 

Cups

[diddydicky]

you should apply for a re determination hearing ASAP

 

the forthwith order allows 28 days for you to comply and the creditor CANNOT apply for a CO until you have failed to comply with the forthwith order therefore the jdueg (IMO) has no authority to attached a CO to the judgement.

[jcv_uk]

I took advice on this. the judgement was a forthwith order and it made provision for the Claimant to apply for a charging order (The CO was not included in the original judgement, just a provision that the Claimant may apply for one but that did not mean one would be granted automatically, the Solicitor I spoke to said that what had been done was quite legal because the order had not been granted but unless I could pay the judgement in full then it was likely such an order would be applied for and granted. Needless to say the claimant did apply for a charging order and this was granted by the DJ at a hearing last week. I attended the hearing because at the first hearing where the CCJ was granted the DJ made it specifically clear that no interest could be charged on the judgement debt because it was below £5000. At the hearing for the CO the claimant wanted to put the CO on my property for the judgement debt plus any future interest on the debt. I challenged this at the hearing citing the original judgement and what the DJ had said. The Claimants Barrister argued that because the judgement did specifically say that interest could not be charged on the judgement debt that the Claimant was entitled to do so. The DJ was having none of that and said interest could not be charged because the County Court Act did not allow interest to be charged on a judgement debt of less than £5000.

 

However when I asked the DJ to put that in writing in the judgement because I did not trust the Claimant as their practices for pursuing me to date have been highly questionable he got a bit stroppy and said there was no need because the law did not allow it anyway and the Claimant should be aware of this.

 

He said worry not they can't charge interest. I have searched for this in the County Court Act but can't find anything about the £5000 rule, can anyone point me to the relevant ruling on this?

[AndyOrch]

Interest on Charging Orders

 

Statutory Interest

Statutory interest would continue to run whether or not the order specifies it. The N86/87 forms allow ‘any interest’ to be included, this means statutory interest.

This doesn’t apply to Consumer Credit Act regulated debts or Charging Orders of debts below £5,000 unless they have been transferred to the High Court for a High Court Charging Order. (The County Court (Interest on Judgment Debts) Order 1991)

The judgment would carry statutory interest if it was made on or after July 1st 1991 and the judgment is for at least £5,000.

If a judgment has a payment ordered to be made on a specified date or by instalments, no interest will be payable either until that date or, on the amount of any instalment until it falls due.

If a judgement carries statutory interest, so will the Charging Order, even if not mentioned within the order itself. [Ezekiel v Orakpo]. S3(4) COA 1979 states that “A Charging Order shall have the like effect and be enforceable in the same courts and in the same manner as an equitable charge”

 

Contractual Interest

Many creditors are trying to argue that Charging Orders carry contractual interest after judgment even if the judgment itself doesn’t. There are plenty of arguments against this.

• Charging orders and their effect are determined by the Charging Order Act 1979
  

Section 1 COA says that a Charging Order is made ‘for the purposes of enforcing that judgment or order’ and that the charge is for ‘securing the payment of any money due or to become due under a judgment or order’. Although enforcement of a Charging Order is not execution of a judgment, s1 means that the order and the judgment must be coextensive. Therefore no money can be recovered in excess of what is due or to become due under the judgment.

• Section 3(4) opens with the words ‘Subject to the provisions of this ACT…’ and so unless the interest is due under the judgment or order under the Interest on County Court Judgements Order, it cannot be included in the Charging Order
  
• The amount of interest depends on the amount of interest due on the judgment.
  
• Some CCA regulated agreement judgements do not have an interest post-judgment clause.
  
• Even if there is an interest post-judgement clause on a CCA regulated agreement the lender still cannot enforce these rights by levying contractual interest – unless that rate forms part of the judgment, the lender would have to bring seperated action for the interest. (Supreme Court Practice 1999 Ed. Para 42/1/24 and Re European Central Railway 1877 4 Ch.D.33
  
• The claimant may try to use s3(4) COA to claim that an equitable charge attracts interest on the principle sum. However, the rate of interest payable under an equitable charge depends on its terms. In the case of a CO, the judgment debt would be in essence the princinple sum. The rate payable on this sum is prescribed by statute or set out in the judgment. S3(4) wouldn’t justify applying a different rate.
  
• 
  
• 
  
• Regards
  
• 
  
• Andy
  

[jcv_uk]

Many thanks Andy, I will keep this for future reference.

[jcv_uk]

Another twist in this case, no wonder I am in ill health.

I received the written judgement on the charging order and inspite of what the DJ said about the claimant not being able to add interest after judgement the order says that the charging order is for the amount of the judgement debt plus any interest.

I then get a statement of account from the claimant and guess what, they have added over £300 in interest back dated to before the court hearing.

Two things here, firstly I need to appeal against this, secondly what procedures are in place to make a complaint about the conduct of a DJ that says one thing in court when he passes judgement then another thing on the actual written judgement?

[diddydicky]

i think you will find that they can claim s69 or contractual interest from the ccj date to the date of the charging order

[jcv_uk]

There was a claim for s69 and contractual interest at the original hearing, the DJ would not grant the claim and only gave judgement on the amount of the claim plus costs.

[cups]

Hi JCV

 

What has happened with this, as TBI are charging e interest as well?

 

Cups

[pop_gun]

The real problem is that creditors are using the Waksman ruling in Carey v HSBC to convince courts that signed credit agreements containing the prescribed terms are no longer required and that 'reconstructed agreements' will do. Regretably, DJs not knowing any better are accepting such rubbish.

 

this worries me. can the DJ be challenged on the law? or would an individual have to go through

the judical review process if an appeal isn't granted.

[paulwlton]

i think you will find that they can claim s69 or contractual interest from the ccj date to the date of the charging order

 

Statutory Interest doesn't accrue post judgment on a regulated agreement unless there's a clause allowing for contractual interest.

 

Post Judgment interest is the topic below.

 

http://www.bbc.co.uk/radio4/youandyours/items/01/2008_10_mon.shtml

[cups]

Hi

 

I have looked at that link, am l missing something??

 

I have looked at my own case and l think because it is a CCJ for over £5000 then they can charge this interest.

 

The t and c l have make no mention of post CCJ interest , so l am concerned.

 

Cups