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Imminent Court Hearing - Howard Cohen (Santander) PLEASE Help


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Consent Orders

 

Even where proceedings are commenced, most disputes settle on agreed terms rather than proceed to be determined at trial. Where parties reach agreement a Consent Order can be filed at court recording the terms of the agreement. This will enable the proceedings to be disposed of and all a party (if necessary) to enforce the terms of agreement recorded in the Consent Order simply by making an application to the court without the need to commence a fresh claim for breach of the compromise agreement.

 

Entering a Consent Order without the permission of the court.

 

Part 40 contains a procedure that allows a court officer to enter and seal a consent order as an administrative, rather than a judicial act. In order to invoke this procedure the following conditions must be satisfied.

 

(a) The judgement or order is of a type set out in r 40.6 (see below)

(b) None of the parties is Litigant in Person.

 

If those conditions are satisfied a court officer may enter and seal the following orders and judgements agreed by consent.

 

1, The dismissal of any proceedings wholly or in part.

2, The stay of proceedings on agreed terms, disposing of the proceedings, whether those terms are recorded in a schedule to the order or elsewhere.

3, The stay of enforcement of a judgement either unconditionally or on a condition that the money due under the judgement is paid by instalments specified in the order.

4, The setting aside under Part 13 of a default judgement that has not been satisfied.

5, The discharge from liability of any party.

 

However, if the consent order appears to be unclear or incorrect, the court officer may refer it to a judge for consideration (PD 40B, paragraph 2)

 

Applying for a consent order to be entered at the court

 

In all other cases where the provision of r 40.6 (2) do not apply, the parties can apply to the court for a consent order to be made in the agreed terms, r 40.6 (5). As the terms of the order or judgement are agreed, the court will usually deal with the application without a hearing (r 40.6 (6).

 

The application notice (N244) requesting judgement of an order in the terms of the consent order must be filed with the consent order, and the consent order must be drawn so that the Judge’s name and judicial title can be inserted (PD 40B, paragraph 3.3)

 

Form of Consent Order

 

All consent orders to be filed at court must be drawn up in the terms agreed and must be expressed as being "By Consent". A consent order must be signed by each parties legal representative, or by the party if acting in person r 40.6 (7).

 

Tomlin Orders

 

If the parties agree terms of settlement that includes matters outside of the dispute, or orders which the court has no power to make, the parties can record those terms and attach them as a schedule to the consent order, or refer to their existence in another document, and apply for an order staying proceedings on the agreed terms. Such an order is known as a "Tomlin Order" after the name of the judge who first suggested it.

 

A Tomlin Order allows the parties to agree additional terms, such as a confidentially clause which the court has no power to order.

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Hi Debs,

 

cohens "consent order" is not worth the paper it is written on, it is merely a ploy to make you sign and then make payments, people seem unaware those payments are then used as evidence you acknowledge the debt as owed to them.

 

Unless you have stated in writing to claimant and the court you are acting on your own behalf, you are classed as Litigant in Person, this means you are prohibited from signing the consent order and an "officer of the court" cannot enter or seal the document.

 

In any event cohen has to file an application (N244) with the consent order, of which, they are duty bound to serve you a copy of, this costs cohen a minimum £40.

 

There is also the time scale, your case is listed for 28th, cohen has insufficent time to file and serve before the hearing, cohen has no intention of doing so anyway, what cohen does is write to the court saying the case has been settled and to remove the case from the listings.

 

What you can do is use cohens "consent order" against them, they agreed settlement under the terms you offered, £10 per month, you can write to the court requesting the hearing be adjourned 30 days to agree final terms of settlement, send a copy of this to cohen.

 

Enclose a copy of cohens "consent order" to the court explaining whilst a settlement has been agreed in princible, the consent order drafted by the claimants solicitor Howard Cohen & Co, listing all the flaws, does not comply with CPR 40.

 

cohen will choke.

 

happy to help if you need any drafts for te court.

 

edge

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That's fantastic Edge, I am so grateful for your reply. I thought it looked a bit sus, but really had no idea.

 

It would be grerat if you could help me with the draft for the court, I am a total novice at all this.

 

Thanks so much again.

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Hi again, sorry to be a pain, but the court hearing is on the 28th, so I assume I need to get this letter to them asap. I have no idea what i'm supposed to write to the court, so if you could help I would be grateful.

 

Thanks again.

Debs

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Hi Debs and Consumeredge,

 

Can you keep as much as poss on-thread please to help others in similar situations.

 

Thanks

 

:-)

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Hi Slick :-)

 

I sent this reply yesterday to HC and recieved a reply within minutes. Will post below.

 

Dear Mr. Moorhouse

I’m sure the court will be curious as to why my offer of £10 per month, acknowledged by yourselves as far back as March 2011, is now only willing to be accepted, albeit under the pretext

" In an effort to bring this matter to a satisfactory conclusion without the necessity of further costs or further court action"

 

I remind you on the 31st May 2011 you yourself stated in order to consider my offer, you required within 7 days some medical evidence, this was duly provided to you on the 5th June 2011.

As to your letter dated 14th June 2011 received on the 16th June 2011, whilst I agree in principle to reaching settlement by way of a consent order, I bring to your attention the following:

Civil Procedure Rule Part 40, the procedure that allows a court officer to enter and seal a consent order as an administrative, rather than a judicial act.

 

Firstly, in order to invoke this procedure the following conditions must be satisfied.

 

The judgement or order is of a type set out in r 40.6

None of the parties is Litigant in Person.

If those conditions are satisfied only then can a court officer enter and seal orders agreed by consent.

As you well know, I am Litigant in Person and prohibited by r 40.6 (2) from signing the documents you have supplied, therefore the claimant’s solicitor must apply to the court for the consent order to

be made in the agreed terms, r 40.6 (5).

An application notice (N244) requesting judgement of the order in the terms of the consent order must be filed at the court and a copy served upon me together with a copy of the consent order, and

the consent order must be drawn so that the Judge’s name and judicial title can be inserted (PD 40B, paragraph 3.3).

It is also noted that whilst your order states there be no order as to costs, you have in fact included these, neither is there a copy of the schedule stated as "Attached hereto".

 

With the hearing set for next Tuesday 28th June 2011, when considering all events, I believe there is case for unreasonable Behaviour against yourselves, and that you write to the court requesting

the hearing be adjourned for 30 days to enable yourselves to prepare to correct documentation and procedure for settlement.

 

Failure to do so I shall attend the hearing, submit all correspondence including your "by consent" and ask the court myself the hearing be adjourned until such time you supply said documentation

and comply with the Civil Procedure Rules.

 

I have also sent a copy of this email by registered post to your office. I trust this clarify matters and look forward to your reply.

 

Yours Sincerely

 

The Reply came back 17 minutes later.

 

Dear Mrs XXXXXXX

Please accept this email as confirmation of receipt of your email dated 22 June 2011.

I can confirm that the consent order which you have received is for both parties to sign. Upon receipt of the signed consent order , I can confirm that the consent order will be lodged at the court and a request made for this matter to be referred to a District Judge for consideration.

Therefore, I would appreciate if you could call me today on 01274 853 241 to enable us to discuss this matter further

I trust that this is in order and look forward to your call

Yours sincerely

Andy Moorhouse

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Consumeredge has asked for a copy of the summons, does this mean the court papers? And also the witness statements, so I will tag them here.

 

ASM4.jpg

 

There were no statements attached or Income and Expense forms as stated when i recieved the original copy of this letter. Only the dodgy looking Credit Agreement with a completely different Account number (barely legible) on it.

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These are the Witness statements I received along with another copy of the 'Credit Agreement' and some typewritten (about 4 sheets) notes that were supposed to be my statements?? with 2 months on each of them.

 

WitenssStatementPg1.jpg

 

WitenssStatementPg2.jpg

 

WitenssStatementPg3.jpg

 

WitenssStatementpg4.jpg

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  • 2 weeks later...

Debs last posted Thursday 23rd June 2011, with the hearing due 10am Tuesday 28th June a Statement of Truth was prepared and submitted to the court on Friday 24th, outlining the history whereby a continual offer to repay the outstanding balance to the Claimant (Santander) at £10 per month had existed previous to March 2011, the offer of settlement remained. It was stated that whilst Debs was in agreement in princible to settle by way of a consent order, the consent order Howard Cohen & Co drafted did not comply with CPR 40, it was also stated that Debs being Lip was prohibited to sign. It was requested the court adjourn the hearing for 30 days in order that Howard Cohen comply with the Civil Procedure Rules and settlement could be reached.

 

A copy of the statement of truth was emailed to Andrew Moorhouse on the same day.

 

A consent order that complied with CPR 40 was drafted and sent to Andrew Moorhouse Monday 27th June 2011, it was stated if Howard Cohen were in agreement, to make 2 further copies, sign them all and return for Debs to place before her legal representative to sign on her behalf.

 

It was made clear, once the documents are recieved and then signed by Debs solicitor, all 3 copies would be returned to Howard Cohen & Co with a letter for the court that Debs was in agreement with the terms of the consent order.

 

Howard Cohen & Co would then be obliged to file and serve an application to the court to have the consent order signed and sealed, upon recieving Debs copy of the consent order from the court signed by the District Judge, and the General form of Judgement, payment would commence to the Claimant (Santander) 14 days thereafter.

 

Howard Cohen & Co were advised it is a very simple matter to fax the court and request the hearing be adjourned for 30 days for settlement to be enacted.

 

Andrew Moorhouse recieved this Monday 9am 27th June 2011, Andrew Moorhouse replied by email at 2:15pm.

 

3 copies of the Consent Order were attached, signed by Howard Cohen & Co, including their full buisness address and SRA number, Andrew Moorhouse stated the court had been contacted, the matter was refered to the District Judge who agreed 28 days for the consent order to be signed and returned. The hearing was vacated.

 

Debs is now in the process of having the consent orders signed by her solicitor, they will then be returned by recorded delivery to Howard Cohen & Co.

 

Once the case is concluded Debs will post

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Hi CE and thanks for the update which is useful for those following this case's progress.

 

Look fwd to hearing further from Debs.

 

:-)

We could do with some help from you

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                                            Have we helped you ...?  Please Donate button to the Consumer Action Group

 

Please give something if you can. We all give our time free of charge but the site has bills to pay.

 

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