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

[gh2008]

yes, that is exactly what it would mean - everything stops dead until the hearing.

 

*IF* you make an app for a set-aside of teh original judgement *OR* an app for a set-aside of teh CO then they would then take precedence over the redetermination.

 

BUT the stay of execution would hold until the matter was finally settled however that ends up and however long that takes.

 

I'll check out how to fill it in and get back

[mkb]

Thank you so much

[gh2008]

http://www.hmcourts-service.gov.uk/infoabout/judgment/cannotpay/afford.htm

http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetForm.do?court_forms_id=484

 

N244 fill out your details and claimant and claim No.

 

You are applying for a 'Stay of Execution'

 

I would like to apply for a stay of execution in this case because ..... and this is where you recount the whole sorry tale (although briefly not full on).

 

MAKE SURE that the fact there is a hearing due is highlight or very clear AND that you are taking advice in order to apply to have the CO and/or original Judgement set aside.

 

jmho although I have asked RWR to look in as well

[mkb]

I have put on front of form:

 

I am applying for a Stay of Execution.

 

There is a re-determination hearing due on September xxth 2010.

 

Q 10 where it asks what info I will be relying on, I have ticked the evidence set out in the box below and so far have come up with this:

 

I was advised to withdraw my defence to this case in April 2010. I did this and submitted a form N9A to the Court with a copy sent to the claimant. I heard nothing further.

My husband was served with an Interim Charging Order in August and this led to me making enquiries where it emerged that the Court had been sending my documents to the claimants solicitors, Wragge & Co. The solicitors did not forward these documents to me so I was unaware of any judgment or hearings prior to the serving of the Interim Charging Order upon my husband.

We both attended the Final Charging Order hearing on xxth August where Judge XXXXXX gave instructions for me to pay £15 per month and allowed the claimants request for the Charging Order. There is no mention of the £15 monthly payment instruction on the judgment I have received from the court however.

I have since received notification that the claimants have rejected my offer of £15 per month and a further re-determination hearing is due to take place on September xxth 2010.

 

I am currently taking advice in order to apply to have the Charging Order or the original judgment set aside.

 

Is this enough or do I say more - I'm tempted to refer to the courts administrative errors but don't want it going against me.

[RobinWayRobinme]

I would disagree in part with the advice you were given by the solicitor and comment as follows:

1. If you made an admission and requested time to pay the procedure is set by the CPR's.

14.4

(1) This rule applies where –

(a) the only remedy which the claimant is seeking is the payment of a specified amount of money; and

 

(b) the defendant admits the whole of the claim.

 

 

(2) The defendant may admit the claim by returning to the claimant an admission in the relevant practice form.

 

(3) The claimant may obtain judgment by filing a request in the relevant practice form and, if he does so –

(a) if the defendant has not requested time to pay, the procedure in paragraphs (4) to (6) will apply;

 

(b) if the defendant has requested time to pay, the procedure in rule 14.9 will apply.

 

Then move to CPR 14.9

 

14.9

(1) A defendant who makes an admission under rules 14.4, 14.5 or 14.7 (admission relating to a claim for a specified amount of money or offering to pay a specified amount of money) may make a request for time to pay.

 

 

(2) A request for time to pay is a proposal about the date of payment or a proposal to pay by instalments at the times and rate specified in the request.

 

 

(3) The defendant’s request for time to pay must be served or filed (as the case may be) with his admission.

 

 

(4) If the claimant accepts the defendant’s request, he may obtain judgment by filing a request in the relevant practice form.

 

 

(5) On receipt of the request for judgment, the court will enter judgment.

 

 

(6) Judgment will be –

(a) where rule 14.4 applies, for the amount of the claim (less any payments made) and costs;

 

(b) where rule 14.5 applies, for the amount admitted (less any payments made) and costs; or

 

© where rule 14.7 applies, for the amount offered by the defendant (less any payments made) and costs; and

 

(in all cases) will be for payment at the time and rate specified in the defendant’s request for time to pay.

(Rule 14.10 sets out the procedure to be followed if the claimant does not accept the defendant’s request for time to pay)

 

Then 14.10

 

14.10

(1) This rule applies where the defendant makes a request for time to pay under rule 14.9.

 

 

(2) If the claimant does not accept the defendant’s proposals for payment, he must file a notice in the relevant practice form.

 

 

(3) Where the defendant’s admission was served direct on the claimant, a copy of the admission and the request for time to pay must be filed with the claimant’s notice.

 

 

(4) When the court receives the claimant’s notice, it will enter judgment for the amount admitted (less any payments made) to be paid at the time and rate of payment determined by the court.

 

14.11

(1) A court officer may exercise the powers of the court under rule 14.10(4) where the amount outstanding (including costs) is not more than £50,000.

(2) Where a court officer is to determine the time and rate of payment, he must do so without a hearing.

 

 

 

Basically, because of the courts errors you have been deprived of the benefit of CPR 14.11 to have an affordable rate determined by a court officer without a hearing. Both the proceedure leading to Judgment and the judgment atself is wrong. Therefore the CO was obtained on the back of a Judgment that was clearly wrongly entered. In my book, if the judgment is shown to be wrong then the CO is wrongly entered and must be set aside. Also, if judgment had been properly entered, you would have made the affordable payments and the claimant would never have been entitled to a CO.

 

Because of the errors made against you, you have been deprived of the proper proccess which has severely prejudiced you.

 

IMO, if you wish to leave the admisison in place, you need an application to vary the Judgment wrongly entered to an admission with affordable monthly payments being determined by the court and the CO be set aside as it was obtained after relying upon a Judgment wrongly entered.

 

If you now believe that you can successfully defend the claim and wish to get the Judgment set aside, rather than an Application to Vary, you will need to make an application for permission to withdraw your admission.

 

I hope this makes sense. Very messy though. Bottom line is you have been severely prejudiced because of serious errors made and therefore court should be sympathetic to you. If you decide to go for variation, I would ask the other side to agree to the variation and set aside of CO as this was clearly a serious error that you are sking them to join with you to correct it, but point out that if that object to your applications you will be seeking costs.

R

[RobinWayRobinme]

p.s.

Stay should be part of same application.

R

[gh2008]

p.s.

Stay should be part of same application.

R

 

Thanks for dropping in

 

My reasoning for 2 apps is that the stay needs to go in before the creditor does something nasty like Writ of Fi Fa.

 

IMHO the set-aside app is going to take a bit of work to get everything together and to get more advice.

 

The stay app can go in on Monday and then mkb can breathe easy

[mkb]

Guys (or ladies) thank you so much for all this.

 

What I want to do is to get the forthwith judgment changed to what it should originally have been ie. full admission with instalment order. I suspect that I could defend the entire claim on basis of mis-sold PPI but have other things in mind so would be happy to get f/with changed plus the CO squashed.

 

I'm gonna need all your help to get this done before the court opens on Monday.

 

So, as well as what I have put together so far, do I add that I am also applying for the original judgment to be changed or how should I word this?

 

In my evidence statement - I will add the CPR points made by Robin and, again, does it need more?

[mkb]

Right, here's what I've come up with so far but not sure if its too much info

 

Q 3 What order are you asking the court to make and why?

 

I am applying for a set aside of the judgment made on June xxxx with subsequent Judgment on June xxxx, made final on Aug xxxx 2010.

 

I am also applying for a stay of execution pending the re-determination hearing due on xxxx Sept 2010.

 

Q 10 What information will you be relying upon?

 

The evidence set out in the box below:

 

Due to the courts administrative errors I have been deprived of the proper process which has been severely prejudicial to me and has led to a flawed judgment that in turn has allowed a Charging Order judgment on the basis of that incorrect judgment.

 

I withdrew my defence to this case on 28th April 2010. Under CPR 14.4, I made a full admission to the claim with a request for time to pay on form N9A to the Court with a copy sent to the claimant. The claimants solicitors wrote on May 5th 2010 that they had received my offer but did not advise whether the offer was accepted or rejected.

 

I heard nothing further from the court nor the claimant.

 

My husband was served with an Interim Charging Order in August and this led to me making enquiries where it emerged that the Court had been sending my documents to the claimants solicitors, Wragge & Co. The solicitors did not forward these documents to me so I was unaware of any judgment or hearings prior to the serving of the Interim Charging Order upon my husband.

We both attended the Final Charging Order hearing on 6th August where District Judge Merrick gave instructions for me to pay £15 per month and allowed the claimants request for the Charging Order.

 

I have since received notification that the claimants have rejected my offer of £15 per month and a further re-determination hearing is due to take place on September xxxx 2010.

 

It is my belief that the original judgment was flawed because the Court did not exercise its powers. Under CPR 14.10(4) where the court receives the claimant’s notice, it will enter judgment for the amount admitted (less any payments made) to be paid at the time and rate of payment determined by the court. Under CPR 14.11(2) it must determine the time and rate of payment without a hearing. Upon reviewing the documents now made available to me, it reveals that the judgment made on 10th May 2010 was to order the hearing for 1st June 2010 where the judgment order was entered for the full amount due forthwith.

Had the judgment been properly entered, I would have been making affordable payments and the claimants would never have been entitled to a Charging Order.

 

 

 

How does it look?

[RobinWayRobinme]

First I'd suggest reading CPR 40 and the Practice direction to it 40B, which as well as other things, deals with judgments that have errors (this is a very serious error). I would deal with this by application. You would be applying to:

1. Vary the Judgment entered ....... by ..... to Judgment by admission payable by monthly payments of £..whatever the DJ said at last hearinginter alia CPR 40.12. Variation required to correct error made by court.

 

2. To set aside final charging order [give details]. Application to set aside made as it was obtained by claimant on a judgment that was wrongly entered and sent to wrong address by the court thereby not giving me the opportunity to have it corrected before further enforcement started.

 

3. Stay of execution of [enter judgment details]. Stay required as judgment wrongly entered and sent to wrong address.

 

In 10. I would knock up a witness statement. Put something together and I'll have a look before end of weekend. 1-3 above is a bit rough but sure you will get the gist.

R

[mkb]

Thanks Robin

 

This is what I've come up with for a statement but please pick it apart and make suggestions for improvement

 

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

 

On April xxxx 2010, I made full admission of this claim along with an offer of affordable payments to the Court on form N9a. I also sent a copy to the claimants.

The claim is for an amount of money due under a loan regulated by the Consumer Credit Act and as such, any admission and offer of payment can be heard without a hearing in accordance with CPR 14.11.

It became apparent to me on July xxxx that events had taken place without my knowledge when my husband was served with an Interim Charging Order (that was subsequently made final on August xxxx 2010.)

Enquiries to the Court revealed that the documents which should have been posted to me were in fact posted to the claimants solicitors Wragge & Co. The solicitors chose not to forward the documents to me therefore I was completely unaware of any instruction by the Court.

In failing to ensure the Orders were served upon me, the Court has made errors which have had serious consequences for me and I request that the original judgment of June xxxx and subsequent Charging Order of August xxxx be set aside.

 

 

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

 

I have deliberately kept it short and sweet but not sure if this is enough???

There is a re-determination hearing allocated for Sept 8th – do I point out that this should now be vacated or should I make no reference to it at all? I don’t want to ignore it then find out that that I should have turned up!!

 

 

Need to get this lodged at court tomorrow so looking forward to your thoughts/suggestions.

[RobinWayRobinme]

I would guess you are keeping it short to fit on form 244. If me, I would do a witness statement and go into a bit more detail and state the actualo CPR'sthat should have been applied. I would suggest to set out the proceedures that should have been used, point out what did in fact happen (including solicitors for claimant receiving your copy of judgment, and probably your paperwork for interim CO)

Rough example (obviously all usual stuff at start and end required).

 

1. I recieved the Claim on the [date] and filed the acknowledgement of service on [date] indicating that I intended to defend the claim.

 

2. After receiving further information and considering my position on [date] I made an admission according to CPR 14.4 as the the claimant was seeking a specific amount of money under a credit agreement regulated by the CCA 1974. I completed the statement of means and requested time to pay and made an offer of [amount] per month according to CPR 14.9.

 

3. From the time I filed and served my Admission and request for time to pay, I heard nothing until my [husband/wife] received notice of an Interim Charging Order dated. I was never served with a copy of the Interim CO [put in if this is the case as it was sent to claimants sols].

 

4. [put here anything that happened before CO hearing if relevant]

 

5. I attended the CO hearing on the [date] and the claimants Interim CO was made final. I pointed out to DJ [name] that I had never received any judgment and that I had made an admission for time to pay, but whilst sympathetic, still allowed the Interim CO to be made final.

 

6. [set out events leading to you getting copy of order, telephone conversations, and what actually happened with your copies]

 

7. As has later been determined from my telephone conversation(s) and correspondence with the court, the Claimant did not accept my offer of payment and therefor CPR 14.10 should have been applied with an affordable monthly payment being determined by a court officer without a hearing (CPR 14.11)

 

8. I have been severely prejudiced as I have been deprived of the correct proceedure according to the CPR's was not followed and an Order was wrongly made on [date]. Further, from this time on, the court has admitted sending the judgment to [sols name], the claimants solicitors who it would appear decided not to disclose the courts error to the court or myself.

 

9. This is a serious proceedural error that requires correcting. Therefore, my Application is made to

 

(a) under CPR 40.12, correct the judgment dated [date] that was wrongly entered and not served on me to a Judgement by Admission payable by monthly payments of [amount]. I have stated the monthly payment of [amount] as it was DJ [name] on [date] who determined that was affordable, and;

 

(b) the Charging Order made final on [date] be set aside as it was obtained by the Claimant on a judgment that was wrongly entered and that was not served on me as the court sent the wrongly entered Judgment to the wrong address. If the correct proceedure had been applied then I would have been making the payments determined by a court officer and therefore not in breach of the correct Order and the Claimant would not have been entitled to obtain the Charging Order. Quite simply, as I had not been served with a correct judgment, I could not be in breach of it.

 

10. I have stated in my Application Notice that I wish this to be dealt with at a hearing. However, I would ask the court to give consideration to dealing with my Application without a hearing as it is being made to correct serious proceedural errors made by the court that in the interest of justice needs to be dealt with urgently. Alternatively, I would ask that this application is dealt with at the hearing on [date] and that this application is dealt with first.

 

 

mkb, I done this very quickly (sunday dinner with wife and kids), but I hope it helps. Don't forget to refer to any exhibits with it and attach seperately.

R

Thanks Robin

 

This is what I've come up with for a statement but please pick it apart and make suggestions for improvement

 

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

 

On April xxxx 2010, I made full admission of this claim along with an offer of affordable payments to the Court on form N9a. I also sent a copy to the claimants.

The claim is for an amount of money due under a loan regulated by the Consumer Credit Act and as such, any admission and offer of payment can be heard without a hearing in accordance with CPR 14.11.

 

It became apparent to me on July xxxx that events had taken place without my knowledge when my husband was served with an Interim Charging Order (that was subsequently made final on August xxxx 2010.)

 

Enquiries to the Court revealed that the documents which should have been posted to me were in fact posted to the claimants solicitors Wragge & Co. The solicitors chose not to forward the documents to me therefore I was completely unaware of any instruction by the Court.

 

In failing to ensure the Orders were served upon me, the Court has made errors which have had serious consequences for me and I request that the original judgment of June xxxx and subsequent Charging Order of August xxxx be set aside.

 

 

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

 

I have deliberately kept it short and sweet but not sure if this is enough???

There is a re-determination hearing allocated for Sept 8th – do I point out that this should now be vacated or should I make no reference to it at all? I don’t want to ignore it then find out that that I should have turned up!!

 

 

Need to get this lodged at court tomorrow so looking forward to your thoughts/suggestions.

[mkb]

Thanks for the pointers Robin - was worried that I might be putting too much but have amended my statement to relay the events.

 

Will get it into court tomorrow and update (hopefully with a big fat WON!!) in due course.

[mkb]

Application made on Monday.

Rang today with progress enquiry and case has been listed for hearing at same time as re-determination hearing :-|. Just hope the notice confirms that enforcement has been stayed til this date

 

What should I expect? I intend taking along my copy of the papers supplied with my application - presumably this would be enough? Is there anything I need to be wary of?

 

My concern would be that the judge might look at papers but be aware that claimants sols will be sat in waiting room, ready with bill for wasting of their time, and feel disinclined to set aside the original judgment.

[gh2008]

My concern would be that the judge might look at papers but be aware that claimants sols will be sat in waiting room, ready with bill for wasting of their time, and feel disinclined to set aside the original judgment.

 

JMHO but if you go into Court with those thoughts then that is the likely outcome.

 

You need to go in knowing that the Court have acted unfairly and why. Stand your ground, do not be bullied.

You are actually offering to pay back the debt in affordable payments, you are not disputing it (although you probably could)

 

You ARE disputing that to not be given a chance to pay it back was NOT FAIR.

 

IMHO I would also start making payments towards the debt at the rate you originally proposed. (I did with a case of mine and it went down very well with the Master and the fact that the claimant refused the payment did NOT go down very well)

[RobinWayRobinme]

Quite the opposite mkb, they have wasted your time. They could have brought this error to the attention of the court and avoided all this as they had all your paperwork sent to them and probably knew it. This could have all been avoided by them, but instead they apply for a charging order knowing that the errors had occurred. If you put it across to the court in this way then they will be off on the wrong foot with the DJ as they arw also officers of the court and must not mislead the court, which I think can be argued they have done.

 

As gh has suggested, you need to be positive, start practicing what you will say, and don't let them bully you or talk over you. Did you do question 10 a sa Witness statement?

R

Application made on Monday.

Rang today with progress enquiry and case has been listed for hearing at same time as re-determination hearing :-|. Just hope the notice confirms that enforcement has been stayed til this date

 

What should I expect? I intend taking along my copy of the papers supplied with my application - presumably this would be enough? Is there anything I need to be wary of?

 

My concern would be that the judge might look at papers but be aware that claimants sols will be sat in waiting room, ready with bill for wasting of their time, and feel disinclined to set aside the original judgment.

[mkb]

Hi guys

 

gh - good point about making 1st payment - will make sure its made before the hearing

 

Yes Robin, i did Q10 as a statement and attached copies of all the documents I referred to in my statement.

 

I have taken on board what you both have said and will defo be practicing what I will be relying on with a file marked out where to find the various docs etc. and all the while, bear in mind that I was the one who was wronged here.

 

Interestingly I had a letter today from the sols asking for Income/Expenditure (with proof of both!!) before "our client will consider your offer"!!!! What a flaming cheek!!

 

Updates as and when

 

Thanks (as always)

[mkb]

On the N244 I applied to:

 

1. Vary original judgment from Judgment on Acceptance to Judgment on Admission, payable by instalments

2. Set aside final CO on basis of original judgment being wrongly entered

3. Stay of execution

 

Todays post brings this and I need to know a) is this correct and if so b) when does the variance of original judgment happen?

 

Should I notify the court that No1 in my application should also be addressed or will this automatically be addressed at the hearing?

 

I just dont want any more errors

 

[citizenB]

mkb, I dont know the answer to your question. Perhaps a quick call to the court. See if they can answer this for you.

[mkb]

Derrrrr, wish I had done that before posting, lol

 

Apparently it will be dealt with at the hearing

[diddydicky]

Hi guys

 

gh - good point about making 1st payment - will make sure its made before the hearing

 

Yes Robin, i did Q10 as a statement and attached copies of all the documents I referred to in my statement.

 

I have taken on board what you both have said and will defo be practicing what I will be relying on with a file marked out where to find the various docs etc. and all the while, bear in mind that I was the one who was wronged here.

 

Interestingly I had a letter today from the sols asking for Income/Expenditure (with proof of both!!) before "our client will consider your offer"!!!! What a flaming cheek!!

 

Updates as and when

 

Thanks (as always)

 

with respect, if you have made an offer of monthly payments to someone- it is perfectly reasonable that you show that this is genuinely a reasonable offer and not an extraction of urine

[mkb]

The judge was the person who decided the amount to be paid though and he based that decision on the I & E provided at the final CO hearing.

 

Apparently some judges will order £1 per month but I never offered such a low figure and instead, offered the maximum we can afford - after all, income support doesn't go far and the judge felt my offer of £15 per month was perfectly reasonable.

Edited August 26, 2010 by mkb

[RobinWayRobinme]

Yes agree you should phone court and find out whats happening with your application to vary original judgment. IMO it should all be on the application notice. What are they playing at now!!!

R

On the N244 I applied to:

 

1. Vary original judgment from Judgment on Acceptance to Judgment on Admission, payable by instalments

2. Set aside final CO on basis of original judgment being wrongly entered

3. Stay of execution

 

Todays post brings this and I need to know a) is this correct and if so b) when does the variance of original judgment happen?

 

Should I notify the court that No1 in my application should also be addressed or will this automatically be addressed at the hearing?

 

I just dont want any more errors

 

[citizenB]

Derrrrr, wish I had done that before posting, lol

 

Apparently it will be dealt with at the hearing

 

lol, hindsight is a wonderful thing. Great at least you know what is happening now.

[mkb]

Hearing in next few days and todays post brings witness statement from claimants sols (and Statement of Costs for £1250!!)

 

I am still of the opinion that I have been wronged and am prepared to fight for my rights but wanted any comment/tips etc after seeing what they are saying

 

Sorry for all the pages but heres their ws (previous pages are just the background) Cant help but notice that of the 2 documents they attach, 1 is clearly marked File Copy yet the 1 that allegedly accompanied the ICO doesn't appear to have been hole punched and taken from the file

 

 

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