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

[mkb]

Letter as amended by CB should do the job mkb

R

 

Thanks - letters been posted recorded delivery so will await their response. Said to hubby that I don't want to pee the judge off but it has to be recognised that I would not be in my current position ie Charging Order on home IF the court had sent me the notice of hearing and this is what is making me so determined to get it put right, with the help of CAG

[mkb]

Letter received from court today enclosing the original judgment dated 18th May. As you will see, they accept my offer but no reference to the instalments I offered, just a forthwith judgment

 

http://a.imageshack.us/img835/3892/36475877.jpg

http://a.imageshack.us/img405/1724/37397862.jpg

 

 

 

As you can see by the letter, they are investigating my complaint.

 

Anything more I can do at this point?

Edited August 13, 2010 by cerberusalert
by request of OP

[gh2008]

The Order would seem to indicate that YOU offered to pay the full amount forthwith and that is what they accepted.

 

If you can show otherwise you must make an application to have that Order set-aside on those grounds.

Edited August 13, 2010 by cerberusalert
by request of OP

[mkb]

So will the fact that I submitted an offer of instalments on a form N9a be sufficient to get the order set-aside?

 

I can show a copy of the original letter to both courts and claimant which has the following in it:

 

I enclose Form N9A with an offer of monthly payments.

The information has also been forwarded to the Claimants Solicitors.

 

 

I also have a copy of the N9a which I saved when I posted the letters above.

[gh2008]

Yep

 

But wait for others to confirm but I would say that the fact that the Order says the offer is accepted payment due forthwith means that the offer 'on the table' was forthwith payment.

 

Your N9a clearly shows that was not the case and therefore the Order is wrong (or at least flawed)

 

I would get yourself down to a sols as well and get a 'free consultation' as this is a *real* mess

[mkb]

Thanks gh

This needs to be done by yours truly since the free consultations will not begin to unravel the chaos here, lol and sadly, legal aid has been denied and Income Support doesn't stretch far enough to cover sols bills

[gh2008]

I meant advice about this specific issue rather than the 'underlying problem'

 

The consequences of the 'error' wherever that was made and by whoever have been serious for you.

[mkb]

Reply from court received today:

 

 

http://a.imageshack.us/img36/710/replyfromcourtrecomplai.jpg

 

 

So, does [i]incorrectly updated[/i] mean that they admit to not sending me the documents in which case, a set-aside should surely be a formality or is that me being too optimistic?

 

How should I proceed guys?

[gh2008]

you need to apply for a 'stay of execution' like NOW

 

Hopefully it is still with the local Court

[gh2008]

IMHO that is the urgent issue, then deal with the set aside hearing as you will have time for that

[mkb]

you need to apply for a 'stay of execution' like NOW

 

Hopefully it is still with the local Court

 

Sorry but I dont know what this means - helpppp

 

Have googled it but it doesn't really explain what this means in my position

 

Heres the Final CO sent after the hearing on 6th, in which the judge also ordered monthly payments of £15 but theres no mention of this on the Order

 

 

This is all such a mess........

Edited August 19, 2010 by mkb

[gh2008]

Ok, I am not up of final charging orders and exactly what they mean or whether the claimant can still try and enforce the judgment in other ways as well.

 

BUT the fact that the letter mentions it means IMHO you MUST do it.

 

A stay of execution will stop any application for sale or the bailiffs or whatever the claimant wants to try.

 

Very straightforward, make an N244 app with £40 unless you are exempt (see EX160) asking for a 'stay of execution'

reasons being hearing for a varying of terms AND that you are going to apply to have the original judgement set-aside set aside hearing

 

jmho

[mkb]

I did apply for variation prior to final CO hearing and the claimants rejected my offer hence another hearing listed for early Sept (although this shouldnt have been necessary since the judge ordered it at the final CO hearing) :?

Edited August 19, 2010 by mkb

[gh2008]

right.

 

I thought the original point of all this was to get the original judgement set aside so that you could defend teh original action?? Is that not right??

 

The hearing is to hear your variation application as the other side rejected it.

 

The stay of execution is to stop the claimant from taking FURTHER enforcement action, such as instructing High Court bailiffs to call etc.

[mkb]

right.

 

I thought the original point of all this was to get the original judgement set aside so that you could defend teh original action?? Is that not right??

 

Yes, even tho I admitted the claim, I did not get the paperwork which ordered a hearing prior to the judgment being made, hence a forthwith judgment, again which I was not posted.

 

The hearing is to hear your variation application as the other side rejected it.

 

 

The stay of execution is to stop the claimant from taking FURTHER enforcement action, such as instructing High Court bailiffs to call etc.

 

I didnt know this could happen, especially since our home is in joint names etc

 

I will download an N244 tonight and get it lodged at court tomorrow but will probably be asking for your opinions before I do

[mkb]

Couldnt finish this last night as site went down

Comments on my proposed N244 would be most helpful

----------------------------------------------------------------------------------------------------

 

Q3 - I wish to apply for an order to set aside the judgment made on 1st June 2010 which was made after a hearing took place.

 

Owing to administrative errors by the Court, I was not notified of this hearing and could not attend.

 

I also request a stay of execution, preventing any enforcement action until the outcome of this application is known.

 

Q4 No

Q5 At a hearing?? Dont know if this is right??

Q6 15 mins??

Q8 DJ

Q9 Other side?? Is this necessary??

Q10 evidence set out in box below:

 

Owing to the Courts administrative errors, I was not served with any documents - these were sent to the claimants solicitors in the mistaken belief that those solicitors were representing me.

As a result of these errors, I was unaware that a hearing had been set for 1st June at which Judge xxxxxx made a forthwith judgment against me. As I had already submitted a form N9a requesting time to pay, it would appear that this judgment is flawed.

Subsequent enforcement has also taken place which I believe would not have happened if it were not for the courts errors.

I have been severly prejudiced by the judgment through no fault of my own.

 

---------------------------------------------------------------------------------------------------

 

What do you think? Is this good enough?

[citizenB]

At a hearing will cost you £75.00, without a hearing £40.00

 

Although if you are exempt from fees then I guess it doesnt matter

 

Perhaps 30 minutes time

 

What is Q9 in respect of.. ? The other side should be sent a copy of the application if that is what you are asking.

 

Looks ok to me

[gh2008]

Ok, I am not up of final charging orders and exactly what they mean or whether the claimant can still try and enforce the judgment in other ways as well.

 

BUT the fact that the letter mentions it means IMHO you MUST do it.

 

A stay of execution will stop any application for sale or the bailiffs or whatever the claimant wants to try.

 

Very straightforward, make an N244 app with £40 unless you are exempt (see EX160) asking for a 'stay of execution'

reasons being hearing for a varying of terms AND that you are going to apply to have the original judgement set-aside set aside hearing

 

jmho

 

You seem to be applying for a set-aside ......

 

Now, this is JMHO BUT I would apply for a 'stay of execution' £40 without hearing

 

THEN

 

sort yourself out and apply for a set-aside

[gh2008]

Ok, this is my thinking.

 

The claimants have a forthwith judgement - they have 'secured' it with a charging order

 

Now AFAIK there is nothing stopping them from enforcing the forthwith judgement using High Court bailiffs to basically turn up unannounced and demand payment 'forthwith'

 

hence why I think a stay of execution would be a good idea (and so does the Court going by the letter)

 

the fact there is a hearing or you apply for a set aside WILL NOT STOP enforcement of the existing judgement - been there done that

[mkb]

Managed to speak with a solicitor yesterday who said that it would be pointless asking for set aside since I withdrew my original defence

 

He also said there is no possible way to set aside a CO on its own - its original judgment or nothing

 

So I'm gonna have this CO for as long as we own our home but would be paid off if we sell or would be 3rd in line after 1st mortgage, 2nd secured loan (from same lenders as 1st mortgage) in the event we were repossessed or went through mortgage rescue (a very real possibility).

 

He said that the hearing due in Sept is because the claimants rejected my offer but that the judge must order the payment in line with my ability to pay.

 

THEN I read what gh2008 said about HCEO's and now all in a dither again

 

What power do HCEO's have and are they allowed even if I am paying in accordance with court order??

 

I found this on the HCEOA.org.uk website:

 

What judgments can the High Court Enforcement Officer execute?

 

The High Court Enforcement Officer can execute:

Any High Court Judgment or;

Any County Court Judgment where the amount to be enforced is £600 or more and the original claim did not arise from the Consumer Credit Agreement.

I have highlighed the bit about CCA since this debt is a CCA regulated loan and need to check whether this means I'm safe

Edited August 21, 2010 by mkb

[Ganymede]

Managed to speak with a solicitor yesterday who said that it would be pointless asking for set aside since I withdrew my original defence

 

He also said there is no possible way to set aside a CO on its own - its original judgment or nothing

 

So I'm gonna have this CO for as long as we own our home but would be paid off if we sell or would be 3rd in line after 1st mortgage, 2nd secured loan (from same lenders as 1st mortgage) in the event we were repossessed or went through mortgage rescue (a very real possibility).

 

He said that the hearing due in Sept is because the claimants rejected my offer but that the judge must order the payment in line with my ability to pay.

 

THEN I read what gh2008 said about HCEO's and now all in a dither again

 

What power do HCEO's have and are they allowed even if I am paying in accordance with court order??

 

I found this on the HCEOA.org.uk website:

 

What judgments can the High Court Enforcement Officer execute?

 

The High Court Enforcement Officer can execute:

Any High Court Judgment or;

Any County Court Judgment where the amount to be enforced is £600 or more and the original claim did not arise from the Consumer Credit Agreement.

I have highlighed the bit about CCA since this debt is a CCA regulated loan and need to check whether this means I'm safe

 

 

You are not safe I don't think. HCEOs can visit or call round any time they want and can take possession of your car, property etc and sell it. They cannot currently force entry into a private home some keeps your windows and doors shut!

 

Once the redetermination haering has happened hopefully the DJ will set an instalment rate of payment and as long as you pay it every month on time no further action should be able to be taken, including sending round the HCEOs.

[mkb]

Thanks ganymede.

 

My plan now is to ring the court on Monday to check whether the payment ordered by judge at CO hearing was recorded because if it was, a payment will be due (and paid) before the redetermination hearing in Sept.

I'm also thinking that it may be prudent just to make that payment regardless since the judge may be inclined to look favourably upon me (for a pleasant change ) if I have paid it even if it was an informal agreement at the CO hearing.

[gh2008]

Please mkb you MUST apply on Monday for a stay of execution. I have been there - check my threads

 

It is *very* straightforward if you catch it whilst it is still at the local court - it gets more difficult (as it did with me) if it gets to the HCEOs

 

Do that and THEN we can all look at the set aside (don't believe the sols word 100% as I think you will be able to show that with the bad advice and confusion you were badly prejudiced and therefore your voice should be heard)

[gh2008]

The payment was not ORDERED else it would appear on the Order - the payment was refused by the other side and therefore the payment is due forthwith i.e. on demand

[mkb]

Please mkb you MUST apply on Monday for a stay of execution. I have been there - check my threads

 

It is *very* straightforward if you catch it whilst it is still at the local court - it gets more difficult (as it did with me) if it gets to the HCEOs

 

Do that and THEN we can all look at the set aside (don't believe the sols word 100% as I think you will be able to show that with the bad advice and confusion you were badly prejudiced and therefore your voice should be heard)

 

Thanks gh.

 

I don't have a clue what I should be putting on the N244 tho - please can you tell me?

 

Would this mean that nothing could happen prior to the re-determination hearing?