Discharge of Chargin Order

[toddle2u]

Ok long story short. Charging Order secured on friends property for £50+k in 2007 for £47K loan and £3k o/d current account with Natwest. She didn't defend in fact didn't do anything as was in a difficult place at time and head was all over the place.

 

Anyway CCA'd, SAR'd and CPR'd Natwest took 18 months but finally got response saying they had no agreement, default notice etc all they had was statements. Said in regards to DN should rely on diary entries from there system - which they haven't given us.

 

Anyway Aug 2010 went to court on setaside application saying no agreement or DN so should be setaside and CO removed. Judge said had taken too long to apply for set aside and would not use courts discretion to grant it in this instance. But did say he may have looked at it differently if we had been bringing a claim against Natwest (who didn't even turn up to defend setaside).

 

Ok now preparing a N244 to apply for the discharge of CO on grounds of no loan agreement or agreement to o/d no DN etc.

 

Is this the way to go and what the Judge was implying?

 

Any help appreicated

[sillygirl1]

Don't forget to put in for additional charges they will have clocked up on the account, and for the record to be completely moved from her credit rating files.

[AndyOrch]

Hi Toddle

 

The judge said it was to late to set a side due to length of time in making application, but if you had made a claim against the claimant he may have looked at it.

You haven't made a claim so why are you making application for discharge?

 

Regards

 

Andy

[toddle2u]

You haven't made a claim so why are you making application for discharge?

 

I thought that this was the direction the Judge was pointing us in. Not sure if i'm not seeing the wood from the trees here but on what grounds would we make a claim against Natwest for?

[AndyOrch]

I cant really say or understand what the DJ reasons for saying that was based on.He as refused set a side so how could you bring a claim unless its a separate claim to that proceedings.

A separate claim may be for data protection or damages hard to say without the full knowledge of the case and the DJs hindsight.

 

Regards

 

Andy

[debbbbsy]

Hi,

 

should rely on diary entries from there system - which they haven't given us.

 

They are referring to her "Diary Event History".

To get a copy of this, she needs to request it from the department which holds this data on there system. It is

The Recovery Manager

Customer Management Services

Kendal Court

Telford

TF3 4DT

 

Send them a copy of the SAR, and a letter specifically requesting the "Diary Event History".

 

As for the judges decision to not consider the merits of the case, purely on the grounds that she was out of time.

 

"CPR 3.9 & 3.10 allow the courts to 'overlook' errors of procedure

as long as there is a good explanation for the error

and there is merit in the underlying argument asked to be heard".

 

[AndyOrch]

CPR 3.9 & 3.10 allow the courts to 'overlook' errors of procedure

as long as there is a good explanation for the error

and there is merit in the underlying argument asked to be heard".

 

And that is key which he has decided not to in this case.

The set a side was refused.

[debbbbsy]

Yes, but on the one hand he is saying that the case has merit, and they should make a claim against Natwest. So if it has merit, he should consider the case and overlook the fact that it happened years ago.

[AndyOrch]

No he said " Judge said had taken too long to apply for set aside and would not use courts discretion to grant it in this instance. But did say he may have looked at it differently if we had been bringing a claim against Natwest" Which the OP has not, how could they, what would be the claim?

It would have to be a fresh claim nothing to do with the above set a side, as that was refused.

[toddle2u]

Ok the following was the Judges decision made before a hearing took place. He made this decision without a hearing. We requested a hearing and that was when he said a claim against Natwest would have been looked at differently.

 

1) The proposed defence is not in any eventa denial, but a putting to proof. There is no positive argument that no money is outstanding on the account

2) There is in the circumstances no real possibility of the defendant being able to show there has not been undue delay in making the application

 

There is no mention of the merits of the actual points raised in the setaside application apart from the above.

 

Debbbsy - we wrote to Telford and all they sent us was the diary history from when the court action began and nothing from beforehand regarding the DN's

[debbbbsy]

Telford have got it, the log begins when the account goes into default & is passed to them. Have you threatened them with a complaint to the Information Commissioner. Don't give up, I got mine, and it was full of inaccuracies, and was extremely revealing about was was going on with my accounts.

[toddle2u]

Ok will try again to get it and threaten them with ICO. Probably the reason they haven't given it to us

[debbbbsy]

but a putting to proof

 

Could he be referring to an application for a declaration of enforceability.

 

[toddle2u]

Could he be referring to an application for a declaration of enforceability.

 

That's basically what the set aside application was. It was unenforceable so CO shouldn't have been sanctioned

[toddle2u]

Ok I need to resurrect this one. I Applied to the Courts for a declaration of unenforceability.

 

Without a Hearing I got a reply stating 'the application is struck out because the Judgment has been enforced'.

 

Thats's it nothing else.

 

Anyone any thoughts on this and where to go with it now?