Out of the blue Bailiffs turned up for a ccj I didn't know about. - **SET ASIDE AND COSTS AWARDED**

[EzyChic]

I haven't submitted my WS yet! I haven't sunmitted anything. Thats £300 btw NOT including the cheque I have already sent them. That'll make it around £600, plus my costs. Me thinks this will cost them a lot of money - I wouldn't have notice the over payment had they not have done this to me. I am just collating all the evidence - am taking screen shots of all my payments to them.... (phew for online banking). One of the payments was on my credit card though, so I'll have to wait for that statement to come through the post.

[EzyChic]

Next question, I have these transactions clearly visable on my online banking. Is a print out from there ok? Is that OK to submit to the court and can I block out all the other bits, like my balance, transactions to porn sites (kidding), but y'know, things that are bog all to do with anyone but me?

[EzyChic]

I haven't submitted anything to the court yet. I haven't submitted my WS. I wonder whether or not I should cancel the cheque I sent them or let them cash it and further hang themselves?

[Cyberprog]

You may be best phoning them, and advising that you may have overpaid, in addition to the cheque that you have sent them and asking them not to cash it. Stopping the cheque may not be the best of ideas.

 

It's possible in the crossover between the companies, that something has been double paid or invoiced, and that's where this has come from, or that they have forgotten to send you a bill.

[EzyChic]

I have an invoice of all transactions from the time I started using them in 2007 until I stopped using them. It has every invoice on a monthly basis and every payment I have made, minus a couple. Let them cash the cheque. I don't want to speak to them. They can cash it and then have to give it back to me. It'll hurt more that way. (Them not me).

[ploddertom]

Did you ever get a copy of the original Court docs, if so what do the actual Particulars of Claim state?

 

PT

[EzyChic]

No, I asked the court and they said I would get a copy. I am assuming the otherside are supposed to send me a copy as their 'evidence'. Or the court send me a copy before the hearing. All I have had is the note from the bailiff and then the date for the set aside hearing from the court. That's it.

[wonkeydonkey]

Hi Ezy

 

If you are 100% positive you have overpaid them then you simply need to re- write your WS. There is no need to wait for the credit card transaction to do this as you can advise the payment was made and that you are awaiting written confirmation. Outline your evidence and ask the Court to set aside the Judgment by Default summarise with a counterclaim for the overpayment and seek costs.

 

As I have said previously get this to all parties ASAP as it gives the Judge time to read and absorb. The Claimant's solicitor will have time to withdraw the claim and then you can go to the hearing secure in the knowledge you will get set aside and it is recorded you will counterclaim and seek costs.

 

WD

 

If you need help with a new WS just shout:

[wonkeydonkey]

You MUST get a copy of the particulars of claim, without it you are in the dark as to what is ACTUALLY being claimed and are only assuming it is for "unpaid fee's" never assume always clarify it saves a lot of tears at the end of the day.

 

Ask the court to email/fax a copy to you with urgency, do not rely on a phone call to them and then later say "well I did ask" get the request to them into black and white.

[EzyChic]

Hi WD,

 

I will contact the court tomorrow. They told me it was unpaid fees, but I have gone through all my payments and they have missed some - money has clearly debited my bank account and they have not credited it on to my nursey statement. I don't know what else it could possibly be for. A part of the original compalint I made though was about their money management. They 'lost' a payment once - my ex had picked my little boy up and called me saying he wasn't allowed to go in the next day because of unpaid fees. I'd called the nursery and asked what unpaid fees - the manager (a right moose) was really rude and said 'you were supposed to pay up last week, you didn't so he's suspended until you pay'. I had a massive row with her on the phone (along the lines of - I have the f*cking email receipt of payment in front of me) - then she suddenly said 'oh yeah, there it is, yeah you paid it the other week, sometimes our system just doesn't add it to the account'. And I was supposed to laugh it off. I didn't even get a sorry. I remember another time being accosted when I left after dropping him off - she wouldn't believe I had paid and demanded I bring in my bank statements.

I should have just gone through the transactions in the first place. Not that it would have stopped me getting the CCJ.

I have done most of WS and saved the 'best' until last - ie - I don't even owe the money, they owe me and I will now be seeking it back plus costs!

 

If I win can I claim damages yet? I just remembered I called my bank and asked about a loan to pay for my wedding and they just declined me straight away - I thought it was the finacial climate - that must be why (we used savings in the end which was probably the most sensible thing to do anyway).

 

I'm getting ahead of myself.

 

Will call the courts tomorrow.

 

Ezy

[wonkeydonkey]

Glad to hear you are on track with this, do make it very clear and keep everything in numbered order so the Judge can easily make reference to each transaction,they do not like having to shuffle through reams of evidence to clarify.

 

As I said before "damages" and "costs" are two seperate issues if you want to go for "damages" it will have to be done via a new claim and you will have to prove

that you have suffered emotional damage leading to financial loss eg: their actions have been detrimental in that they made you so ill you could not function normally which led to loss of earnings, this is a very expensive route to take and the success rate is small. You may at best, if you win,only be awarded two thirds of your legal costs and if awarded a minimal amount you could find yourself out of pocket finacially.

 

IMHO you are best placed to take satisfaction and comfort in proving them wrong initially then go after them with OFSTED for malpractice. Since the Solicitor has not checked the facts and made claims he cannot uphold regarding the alleged phone calls then you also register a complaint with the SRA.

 

WD

[EzyChic]

I have spoken to the courts. They said I don't need the papers for a set aside judgement, nor do I need to detail my defence. He said just say you didn't get the papers and that should be enough. He told me he has seen cases where: defendant: 'I didn't get the papers',

Judge: 'is this your address?'

Defendant: 'yes, but I didn't get the papers'

Judge: 'judgement set aside'.

He said he's not allowed to tell me it will be set aside, but not to worry at all. He said to save the evidence for the hearing which will be after the set aside.

[wonkeydonkey]

Heard this one before and on the day the Judge wants an explanation why you have not provided any facts/evidence the debt is not owed. Yes they can rule a set aside for non receipt of claim pack but, I have yet to see a Judge who does not want to "expand" So become a good Scout and "be prepared"

[wonkeydonkey]

Also there is only ever a hearing after set aside if the original claimant files another claim to get another CCJ you can squash this as I did by giving all the facts at set aside, the Judge then invited both parties to settle all aspects of the dispute there and then to save the Court further time at a future date and yes they have the powers to do this and yes it is a frequent occurance.

[brassnecked]

Also there is only ever a hearing after set aside if the original claimant files another claim to get another CCJ you can squash this as I did by giving all the facts at set aside, the Judge then invited both parties to settle all aspects of the dispute there and then to save the Court further time at a future date and yes they have the powers to do this and yes it is a frequent occurance.

 

 

And in this case may well be the best way forward imho, as in light of what has come out, regarding the potential overpayment rendering the original action vexatious, the original default is extremely unsound

[EzyChic]

I will go into the set aside stating the facts - I did not get the papers. The claimant acted unreasonably. I have a defence. I wish to counterclaim. Etc.I will have all evidence with me and will be more then happy to show it there and then if they so wish. Ow that I know I have overpaid (possibly by more if they cash the cheque), I want them to reimburse me all over payments and pay costs, if I have to bring proceedings against them, I will. If I'm successful I then fully I tend to go to OFSTED and show them exactly how this nursery deals with complaints from parents!

[EzyChic]

Grrr- silly iPhone, I am literate I promise. Will their solicitor attend though? (it's a few hundred miles away) or one of the nursery staff (like the dopey manager). What I'm trying to ascertain is who has the right to make a settlement agreement there and then on behalf of the nursery?

 

Ezy

[ploddertom]

Please note some DJ's will grant set aside and immediately move to rehear the application within minutes. Be prepared for every eventuality.

 

PT

[ploddertom]

Grrr- silly iPhone, I am literate I promise. Will their solicitor attend though? (it's a few hundred miles away) or one of the nursery staff (like the dopey manager). What I'm trying to ascertain is who has the right to make a settlement agreement there and then on behalf of the nursery?

 

Ezy

 

Usually the Solicitor will employ a local bod to attend on their behalf. The good thing about this is that they send them copies of things but don't always explain what it's about - mostly provided the night before by fax or email. There is nothing better than sitting in the Court and listening to learned Counsel repeatedly saying "I do not know" or "I do not have that document", you can then take pleasure by providing them with copies whilst watching the displeasure on the Judges face.

 

PT

[EzyChic]

PT, that would do me fine! I'll take all the evidence with me. I'm a student and back at uni in September, I study Biomedical Science so hardly a (light) degree, that and working and being a mummy and a wife makes me a very busy woman, the sooner this is dealt with the better.

 

My only concern with that is they won't be given the opportunity to see my evidence in advance and therefore may ask for the case to be adjourned (is that the correct term?)

 

Ezy

[ploddertom]

This is why I think the PoC are important. Not only should it give a sum of money owing, but also a reason - in your case non-payment of Fees, along with a period of time they are alleging the monies were for. If for instance it is £500 for the period Jan - Mar & you have statements proving this then they should pull the case before it goes anywhere near Court as they leave themselves wide open to you claiming Costs against them for attendance etc. The Solicitor unfortunately only acts on the information the Client gives them, however they should be able to clearly advise when proof shows otherwise.

 

PT

[wonkeydonkey]

As PT says they will probably retain the services of a local solicitor to speak on the day.

 

 

 

You say you had previously disputed other payments with them and they claimed to have corrected their "system", can you say for certain they did correct the entries? your letter of complaint never received reply so you still do not know what fees or what period they are saying you owed for, do you.?The POC will clarify all this and you can then cross reference with your statements.

Sorry if you find it annoying but I cannot emphasise enough you need to see the Particulars of Claim before the Court date. This should give the amounts they allege you owed and the dates they say the debt covers, only then can you be absolutely certain you have evidence that contradicts the alleged debt accrued on the dates given in their POC.

[EzyChic]

Hi (put the laptop on now, I did write a reply on my iPhone but even I couldn't decipher it),

 

What I have from the nursery is a list of transactions. I think this was their idea of an invoice it is set out as follows:

 

Date Invoice Payments Balance

01/03/2008 £698.54 £0.00

03/03/2008 - £500.00 Debit Card £0.00

08/03/2008 - £200.00 Debit Card £0.00

01/04/2008 £754.64 £0.00

10/04/2008 - £800.00 Cheque £0.00

 

(Dates and amounts aren't the ones on the list but thats how it's set out)

 

Invoicing was monthly, this transaction report starts on the day I started using the nursery and actually goes through to Oct 2010 when I wasn't using them (there is no invoice for that month). At the end of the report there is Totals for both invoices and payments. The difference between which is the amount they have disputed.

 

Yesterday I made up my own spread sheet.

 

I listed

Date - Invoice amount - Payments to account - Debits from my bank account -

 

 

the invoice total is £335 less then the amount debited from my account. (There is a cheque payment which matches with my account and a cash payment which is correct, and one credit card payment, which although it says 'debit card' they acknowledge to recieving)., I have every single debit from my bank account as a screen shot showing the date and amount.

 

I noticed that on occassion they have put '£200' down as a payment when in fact there were 2 transactions for £200 each debiting my bank account. On another day they simply have not put the payments on to the report. The blanace always remains at £0.00 on the list.

 

There is no question that I have paid more then they have invoiced me for. Not including the cheque that I sent them the other day. If someone wants to have a look I can send you a spread sheet. I don't want to publish it publically, but maybe if I PM'd it to someone they can see what I'm saying and maybe word it better then I am.

 

Ezy

[EzyChic]

The court say I need to submit a request in writing for the PoC, and that it may not get to me before my set aside date (maybe this is because it wasn't heard in my local court), they were adamant I didn't need it at all. I wonder if calling the court it was heard at (or not heard) will get me anywhere.

 

Ezy

[wonkeydonkey]

Yes it may well be advisable to try the the issuing court explaining you were denied the right to defend or counterclaim as you did not receive any notice of the claim and that you are totally in the dark what the particulars of this claim are.