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

[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

[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

[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

[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

[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.

[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

[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

[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.

[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

[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

[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

[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

[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

[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)

[gh2008]

IMHO 21-25 are the important ones to discredit/put your side.

 

You have enough info to show that you were not served with the correct documentation at the correct time and as a LiP you were severely prejudiced

IIRC your attendance at the Final hearing was rushed and you were unable to properly prepare again due the the clerical mistakes made.

 

What is *really* important is that the charging order should never have been made if you had been able to show the Court that the £15 pcm was fair http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=15_charging_orders_in_the_county_court#chapter2

 

You do not deny the debt

You are not trying to wriggle out

You are happy to repay the debt through affordable monthly repayments (which could increase should your circumstances change)

 

more info here http://www.insolvencyhelpline.co.uk/debt_factsheets/charging_orders_in_the_county_court.php