Need to get judgment set-aside plus final charging order - please can you help?

[mkb]

Original start of this matter can be found here http://www.consumeractiongroup.co.uk/forum/showthread.php?211299-B

lack-Horse-Loan-PPI-DN-s-%28case-now-in-Court%29 but things have changed significantly so easier probably to start new thread.

 

Because I chickened out of defending my case, I approached a local solicitor who applied for legal aid funding to represent me. This was denied so I felt I had little option but to admit the claim & make an offer of payment. This was sent to court & claimants April 2010.

 

I heard nothing from court thereafter.

 

July 2010, my husband receives an interim charging order with info of final c/o hearing for today. I contacted court same day who tell me that paperwork had been sent to opposing solicitors & that they believed they were representing me

Apparently I should have attended a hearing regarding my offer of payment in June but because I didnt the judgment was granted forthwith. I have a recording (thanks truecall ) between myself and court official which confirms the courts error.

 

Went to hearing today and the judge gave final c/o with no conditions (refused to apply any) plus I pay set amount each month.

 

The judge today however and the claimants representative said that I had a good defence originally and, reading between the lines, I should consider getting the original judgment set-aside.

 

Have I prejudiced myself since I admitted the claim?

 

If so, can I do anything else?

[Guest]

see for eg re set aside the links posted by supasnooper in this thread http://www.consumeractiongroup.co.uk/forum/showthread.php?268786-Set-Aside-a-Judgement-in-Default

[mkb]

Thanks Ford but still not sure if, because I withdrew my defence originally, I have any chance of succeeding with set-aside application and would appreciate opinions on this please

[citizenB]

Hi mkb.. I have flagged this query for the site team. I see no reason why you cant have a judgement set aside if there were errors in making it. I will also send out a couple of S.O.Ss for you.

[mkb]

Thank you CB

[gh2008]

Let's have another go at posting - don't like this new layout :grr: might just ne how it is rendered in Chrome ...

 

anyway, not wanting to put a dampener on things, but if you 'chickened out' originally are you really up for this?

This will be harder than the original fight with greater risk (costs against)

 

IMHO you should have a reasonable chance of getting it set-aside but you will have to show that your defence was good, that you perhaps had bad advice and that 'the decision was not 'fair''

 

Did you withdraw your defence & admit the full amount without question? Was it after a 'threat' from the other side ....

[gh2008]

Let's have another go at posting - don't like this new layout :grr: might just ne how it is rendered in Chrome ...

 

Totally OT but it is how the site is rendered in Chrome Oh well

[RobinWayRobinme]

Hi mkb, CB has asked me to look in.

Suggest that first thing to do is to post up a copy of Judgment with your personal info removed. Was it a default judgment? Can you list in date order (you don't need to actually state dates) what happened from time you received the claim form as just want to see why court had a solicitor on file for you despite fact they weren't acting as you didn't get legal aid. I'm presuming the CO hearing was just for that and there was no other application by you.

 

Can't promiose I can give you all your answers but this will be a good start.

R

[mkb]

gh2008 - totally up for it as so much rides on it now ie my home

 

robin - I dont have a copy of the judgment as it was sent by the court to their sols. They changed sols from SCM to Wragge & Co - they did notify the court of this so why the court thought they were acting for me is totally mystifying

I rang the court again yesterday to ask if the judgment was an "on admission" or "in default" but the file was still with judge so cant check til next week. The officer did say that there was an unusual amount of activity on the file in that it seemed to be updated almost daily. I have no idea why this would be.

 

Jan 2010 I did consult a local sol who said that he thought I had a good case and had some correspondence with SCM

March 2010 duly applied for legal aid - he notified court and other side that we were waiting for decision but that he was only advising me at this point, not representing me and that all papers should be served at my home address.

 

April 2010 Legal aid said no and it was at that point I decided I didnt have the confidence to successfully argue my case so submitted a N9A admission form and offer of payment both to the court and copied to their sols.

 

The local sol I consulted still has my original docs but I rang yesterday and asked if I can have them returned. Still awaiting a response to this.

 

No reply from court or their sols to my admission, other than the withdrawing of their part 36 offer.

 

Next thing we hear is the Interim C/O and covering letter (addressed to hubby - not even to me!!) and this alerted me to the fact that something had gone wrong which became clear when I rang the court.

Copies of Notice of hearing and Judgment attached.

 

They now have a C/O plus monthly payment order but continue to add statutory interest at 8% so debt will never be paid off.

 

I have copies from the court of the orders they say I should have received (as above) but they are not addressed so I cannot prove they were sent incorrectly. I do have a truecall recording tho but I didnt tell the court that it was recorded so the info probably useless?

 

Does that answer all you need to advise?

 

 

http://img826.imageshack.us/img826/2425/bhattendance.jpg

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[RobinWayRobinme]

Not had a chance to look through docs posted yet, but will do so a little later today when I have more time. First observations are that they are not allowed to have post judgment interest added to judgment debt, so that is wrong. Also can't understand why court cannot tell you what type of judgment is against you as it will be on their computer records. Why is the file with the DJ now? Were you never served with a copy of the CO application? Did you attend the hearing and were there any objections to the CO?

 

It seems a complete mess to me, but I will have a go and try to unravel it for you. It may be that you need to get a letter off to the court requesting a copy of the judgment and an explanation of why they have sent documents to another party rather than you.

R

[gh2008]

well they cannot add stat interest to CCA judgement debts for starters!!!

 

IMHO you will have no problem in getting a set-aside of the CO, but ideally you want to try for the original CCJ to be set-aside.

Get a copy of the original Order ASAP and then everyone can see what you're fighting against.

 

Another interesting angle is that the original loan may have been 'missold' i.e. unfair in that if you were led to believe that the PPI would cover you if you became too ill to run the new business and that caused the business to fail .......

 

The fact that the PPI was deemed void when you came to claim, even though full disclosure was made ...... very dodgy IMHO

[mkb]

Not had a chance to look through docs posted yet, but will do so a little later today when I have more time. First observations are that they are not allowed to have post judgment interest added to judgment debt, so that is wrong. Also can't understand why court cannot tell you what type of judgment is against you as it will be on their computer records. Why is the file with the DJ now? Because we had the final c/o hearing yesterday Were you never served with a copy of the CO application? Hubby was, I wasn't - debt however is not his Did you attend the hearing and were there any objections to the CO? Yes and yes - we objected on grounds of joint property yet single debt and prejudicial to other creditors

 

It seems a complete mess to me, but I will have a go and try to unravel it for you. It may be that you need to get a letter off to the court requesting a copy of the judgment and an explanation of why they have sent documents to another party rather than you.

R

 

I kicked up a fuss by phone when hubby got interim c/o when official told me verbally that orders had been sent to SCM for Black Horse and Wragge & Co for me. The enforcement team manager however is denying that this happened so its their word against mine, unless I am allowed to produce the recording (but I hadn't notified them it was being recorded)

 

 

well they cannot add stat interest to CCA judgement debts for starters!!!

 

IMHO you will have no problem in getting a set-aside of the CO, but ideally you want to try for the original CCJ to be set-aside.

Get a copy of the original Order ASAP and then everyone can see what you're fighting against.

 

Another interesting angle is that the original loan may have been 'missold' i.e. unfair in that if you were led to believe that the PPI would cover you if you became too ill to run the new business and that caused the business to fail .......

 

The fact that the PPI was deemed void when you came to claim, even though full disclosure was made ...... very dodgy IMHO

 

100% agreement from me. They have no choice but to agree it was ms-sold since I have proof that they saw my existing disability living allowance as income at the time of applying for the loan.

[RobinWayRobinme]

I've had a look through the docs posted. Am I right with the following.

 

1. Whilst you applied for legal assistance and a solicitor wrote to the court, there was never a solicitor on the record for you.

2. You decided not to defend and made an admission and request for time to pay.

3. What was the purpose of the notice of hearing dated 18 May 2010? Did you receive this notice?

4. Is the reason for non attendance of the hearing 01 June 2010 because the notice was sent to wrong address?

 

Have you replied to the courts letter dated 15 July 2010 or sent any letters to claimant?

R

[mkb]

I've had a look through the docs posted. Am I right with the following.

 

1. Whilst you applied for legal assistance and a solicitor wrote to the court, there was never a solicitor on the record for you. Correct

2. You decided not to defend and made an admission and request for time to pay. Correct

3. What was the purpose of the notice of hearing dated 18 May 2010? Did you receive this notice? Apparently it was to consider my offer of payment. I did NOT receive this notice.

4. Is the reason for non attendance of the hearing 01 June 2010 because the notice was sent to wrong address?

Yes

Have you replied to the courts letter dated 15 July 2010 or sent any letters to claimant? No since the c/o hearing was my immediate priority.

R

 

Hope this helps

[RobinWayRobinme]

OK. IMO you should write to court in reply to their letter of 15 July 2010, and confirming the telephone conversation you previously had where they confirmed at mistakenly sending docs to the claimants former solicitors and that the docs you are aware of were the original judgment, notice of hearing dated 18 May 2010 and judgment at hearing 01 June 2010 which you didn't attend as you were not properly served with notice of it. Ask for a copy of the original judgment (you have already had other copies I believe) and an explanation from them why they didn't send the documents to you (or your husband if he is defendant). Quote to the court that because of their errors you have been severely disadvantaged and that in furtherance of the courts overriding objective they should not allow further enforcement until you have been provided with a copy of the original judgment and you have received their explanation to the serious errors they have made and you are able to consider your position.

 

I really don't understand why there was a hearing in the first place re affordable payments as this should not normally be necessary.

R

[mkb]

Ok, thanks - will post up a letter over weekend for your comments before posting it.

[diddydicky]

rwr is giving good advice here

 

as an aside- im not sure if you say the sols were representing you

 

if they were- and they failed to notify you of proceedings- then i suspect you will have a claim against them for negligence- and at least i would contact them and insist that THEY sort out the mess

[mkb]

rwr is giving good advice here

 

as an aside- im not sure if you say the sols were representing you

 

if they were- and they failed to notify you of proceedings- then i suspect you will have a claim against them for negligence- and at least i would contact them and insist that THEY sort out the mess

 

No dd, I had no solicitor acting for me

 

Can't argue that its all a complete mess but 1 which is going to cost me dear without the help of these wonderful people on CAG.

[mkb]

Heres what I propose to send to the court but would appreciate any comments:

 

Dear Sir/Madam

 

I am writing in reply to your letter of 15th July 2010 and to confirm the telephone conversation I previously had with Mr xxxxxxx where he informed me that the Court had posted my documents to the claimants solicitors, Wragge & Co in the mistaken belief that they were representing myself.(Should I put a mention of the recording I have to prove what I am saying?)

 

The documents in question would be the original judgment, notice of hearing dated 18 May 2010 and judgment at hearing on 1st June 2010 which I did not attend as I was not served with notice of it.

 

I have received copies of the notice of hearing dated 18th May and judgment at hearing dated 10th June but I request that you now send me a copy of the original judgment along with an explanation as to why I was not served with these documents.

 

It must be noted that, because of the Courts errors, I have been severely disadvantaged and that, in furtherance of the Courts overriding objective, you should not allow further enforcement until I have been provided with a copy of the original judgment and I have received your explanation to the serious errors you have made and I am able to consider my position. (Pure plagiarism rwr - sorry but thank you )

 

 

I look forward to your response within 5 working days as per your complaints procedure.

[citizenB]

I see no reason why you cannot mention the recording of the call. Then they can ask for a copy of it should they want further evidence.

[mkb]

I see no reason why you cannot mention the recording of the call. Then they can ask for a copy of it should they want further evidence.

 

Thanks CB - I want a way of making it known that I have this to save all the faffing and denials there are likely to be

[citizenB]

Thanks CB - I want a way of making it known that I have this to save all the faffing and denials there are likely to be

 

 

Right, I think I understand. I guess you could say something along the lines of.

 

"Where there is likely to be any dispute over what has been said during a telephone conversation,it is my practice to record them. I therefore do have a recording of this call to fully substantiate my claim and which I am happy to provide a copy of."

 

Does that sound ok ?

[mkb]

Sounds fab CB, thank you

 

**Trots off to change letter, lol **

[emandcole]

I kicked up a fuss by phone when hubby got interim c/o when official told me verbally that orders had been sent to SCM for Black Horse and Wragge & Co for me. The enforcement team manager however is denying that this happened so its their word against mine, unless I am allowed to produce the recording (but I hadn't notified them it was being recorded)

 

 

Sorry I'm late , was away most of the weekend.

 

Read through and agree it's a mess, lots of strands to pull at and question all of which has been teased out already by the look of it! Interested in the truecall stuff though, as CB has stated I'd definitely look to use that so yes, make sure a copy is available and ensure the court is made aware of its existence early enough.

 

All the better if they have denied something that you can then show actually did happen.

[RobinWayRobinme]

Letter as amended by CB should do the job mkb

R