CCJ Set Aside and Counter Claim.

[EzyChic]

Hi,

 

I have a thread going in the bailiff forum:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?313933-Out-of-the-blue-Bailiffs-turned-up-for-a-ccj-I-didn-t-know-about.%281-Viewing%29-nbsp

 

In brief (or as brief as I can be) here is the situation so far:

 

 

• Got a note from a county court bailiff through the door (July 2011).
  
• Called county court who told me I had a CCJ (I didn't know about).
  
• The CCJ was for unpaid nursery fees - I was given contact details for claimant solicitor.
  
• They informed me the original claim was for £x.xx and now stood at £x.xx + (approx £250 in fees).
  
• I said I knew nothing of this debt; they said they had recorded calls with me discussing it (they later retracted this statement and said this was not what they meant).
  
• They confirmed court papers had been sent to an old address.
  
• The only way to clear the CCJ was to pay up, plus fees, but they would accept installments (how nice of them).
  

I knew nothing about this whole thing because:

 

• I had made payment as far as I was aware - I had written a complaint to the nursery (in Sept 2010) and enclosed a cheque for the amount they said was outstanding.
  
• In this letter I had told them I was changing address and gave them means to contact me (via email)
  
• I checked my online banking (in July 2011) and realised they had not cashed the cheque.
  
• I had also emailed the nursery in Nov of 2010 and asked why I had no response to my complaint, I reminded them I had moved address and told them how to conatct me - they replied to this asking me to confirm my details - I did.
  
• This was the last I heard from them until a bailiff turned up (at my new address).
  

Based on this I applied for a set aside and stay of execution - the hearing for which is due to take place in a few weeks. I also sent another cheque to the nursery to replace the cheque they did not cash in Sept.

 

 

• Whilst collating evidence for my defence (should I be successful in the set aside) I found a 'list of transactions' that the nursery had sent me in Sept 2010 (before I sent them the complaint and cheque). It dates from when I started using their services until 6 weeks after my child left (??? bit odd but anyway). It details every invoice they sent me, and every payment I made. (Exept for the final cheque payment - which is the difference between the 'invoice total' and the 'payment total' on this report) The 'balance' is always down as £0.00 (a bit odd).
  
• I decided to cross check this with the debits from my bank account.
  
• As it transpires, considerably more has been debited from my bank account then they have credited to my nursery account. (By considerable amount I mean I have over paid by a LOT more then they took me to court for in the first place).
  
• As I realied my account was in credit, I realised this CCJ could not be because of unpaid fees, but must be something else.
  
• I tried to get the particulars of claim from the court - they said it would take some time, but confirmed they had filed for 'unpaid fees'.
  
• I contacted their solicitor requesting a copy of the PoC.
  
• He confirmed it was for unpaid fees.
  
• I gave to him this was impossible as my account was clearly in credit and I have evidence to prove every penny I paid in the form of bank statements.
  
• He then said his client would agree to the set aside of default judgement as long as each party was willing to pay its own legal fees (I am not sure whether or not they still want me to pay the amount they took me to court for as well - I have since cancelled the cheque I sent them).
  
• This strikes me as odd, as I know their legal fees exceed the amount of the original claim.
  
• I put to him, I did not think I should be paying any costs (so far mine has only been my set aside fee, but he was under the impression I had paid for legal advice). And the I intended to counterclaim to recoup the overpayment.
  
• Naturally, he told me this would probably cost me more then it was worth (yet he was happy for his client to take me to court for considerably less).
  

I now have an email from him and a letter asking me to agree to pay my own costs and his client will pay theirs and the judgement will be set aside.

 

I now have a bee in my bonnet! I think they have seriously messed up. I think they have realised that and are seeking to limit damages. I never thought I'd say this, but I WANT to go to court, I want my costs back (including but not limiting to my court fee for the set aside application), I want what they owe me back too, I also want costs for my time (I'm a working mother of two, a full time student and a wife - my time is valuable), I also wish there was a price for the strain on my marriage (my husband is not the father of my children, this has nothing to do with him), I have had to keep my doors locked for fear a bailiff will come and levy on my things, I have lost so much sleep I am like a zombie, I panic whenever the door bell rings. We own our house which is in a very nice area, and I worry that people will have seen bailiffs knocking on my door. I even panic whenever we have guests around in case we get a visit from men with a van - I guess I can't put a price on that?

 

I have forwarded their solicitor proof of th overpayment and await his response. He seems keen for me to agree to costs and asks I get back to him ASAP.

 

So guys and gals of the legal forum - what do you think my reply should be?

 

Ezy

[applecart]

Hi Ezy

 

If I had cleared a bill and I could prove I have paid it - I, Like you; would be more than happy to go to court - if you win the case; then you should be awarded your costs and out of pocket expenses - if you agree otherwise, then you are effectively saying to them - that if you win - they do not have to pay your costs .... unheard of!

 

The evidence you produce at the set aside hearing is just to convince the Judge that you have a valid defence - if he decides that you cannot do that - he will not set aside the CCJ already granted in favor of the nursery.....

 

So your evidence needs to stack up and show you owe them nothing - so your bank statements are a good proof tool - not only to show that payments debited clear the debt, but will also show that they have taken more than they are due and they should repay them.

 

If the Judge agrees to set aside the CCJ, then you will be given the chance to defend against their claim formerly and it would be at that time that you would submit your counterclaim.

 

Hope this helps?

 

Applecart

[EzyChic]

Thanks Applecart,

 

It does.

 

I get the impression thT they have realised they've messed up and just want out. So if the set aside is granted, they won't try and get another judgement against me. I can still counterclaim though can't I? There's no way they're going to reapply for the judgement - they know they're over a barrel.

 

They have asked me, without prejudice save as to costs, to agree to my costs and they'll agree to set a side. I'm guessing they're just chancing I'll agree to that as if I did I couldn't counterclaim.

 

Is that right? I'm very new to this - hope I'm learning fast enough

 

Ezy

[applecart]

Hi Ezy

 

Just to add to your growing knowledge....

 

If the Judgment is set aside - then the CCJ is removed from your file pending the hearing..... your fight is to ensure that the CCJ never goes back on - which it won't - if you win your case ....

 

I think you have given them far too much info already - but yes, you are right - they know they are over a barrel - but, remember they can still assert at the hearing that they do not agree to the Judgment being set aside - but they had better have a real good reason to convince the Judge that he should not set it aside - given that your evidence is bonafide proof that you owe them nothing and clearly the Judgment is what is known as a 'default judgment' - the court have a duty to hear your defence in any event...

 

The 'without prejudice' simply means - you can not put before the Judge their feeble attempt to get you to agree to their out of court request to pay your own costs... ignore it - you do not have to respond - if you do - respond in the same way... what I mean is: at the top of your response state the words 'without prejudice' - it's always a good idea to use those words in any written legally based correspondence - when you have something to say - that you don't want used against you in a court of Law - especially when - you know you are 'pushing your luck' as the solicitors are in your case....

 

Follow the courts lead on this - attend court - defend the CCJ with your evidence to set aside - there have been occassions where the Judge will conclude the whole thing and grant the set-aside and your out of pocket expenses for the hearing and ask you what other expenses you want taken into account - it's not unheard of - this is where he can take into account your 'counterclaim' - all you have to do is let him know that there will be a counterclaim, can he consider it or would he prefer a separate application be brought to court as party to the defence should the other party intend to proceed with their claim - so - go with the flow - It appears from what you say that you have nothing to lose - go for it : )

 

Apple

[EzyChic]

Email at 9am this morning! Asking me to reply to the consent letter agreeing to costs. Do they still think I'm stupid? As if I'm going to agree to costs! I love that I emailed him weeks ago trying to resolve this issue... And they didn't even grace me with a reply. Then when I apply for set aside and tell them I want the money they owe me they're desperate for me to agree to costs and settle (before they've responded to the over payment claim). Think I'll leave them wondering for a while.

[bazaar]

Right, as applecart says, ask if your counterclaim can be heard there and then, DO NOT give the other side any more info.

Sit yourself down and start going over all the hours you spent researching the relevant law, all the postage, parking etc you spent. Then put together a spread sheet with all those hours on, ( the rate is £9.25 per hour ).

Youve already got the bank statements that prove youve overpaid, so that is also part of your counterclaim. If you go to court armed with all this info prepared, you may well have a judge who is prepared to look at it.

The other side are clearly Sh88ing some little bricks now.

Go for the bag of nuts and squeeze very hard

[EzyChic]

Hi,

 

I think you're right. I got an email first thing asking me againto agree to costs. I said I needed PoCs before I could cone to a decision. Got those - they don't tell me much. So I've said I want 'any evidence that your client has provided to prove I ever owed £xxxx in the first place'. I'll wait patiently for them to not give me any (or what they will give me I have proof is wrong'. Then I think I'll reply. Is 'without prejudice, see you in court' a bit too harsh? Ha ha ha.

 

I've already got a list of costs as long as my arm. Thing is I earn more then £9.25 an hour, - but would u get that without tax?

 

Will keep you update

 

Ezy

[bazaar]

£9.25 is the Litigant in Person rate,

dont send any more without prejudice letters. youre giving them too much of a heads up. The important thing is to get the CCJ removed, if you start playing games, you'll look unreasonable.

For the set aside hearing, you have proof that theyve had more than their original claim against you. So their claim should have fell at the first stage.

Have the necessary paperwork to try for a counterclaim with you, just as you would had you known about this in the first place.

Go over your paperwork, have you filled in the correct forms etc.

just curious , Why did all this go to an old address? have you moved since?

[EzyChic]

They sent things to the wrong address because I had moved house.

They knew I had moved house - I wrote a complaint to them about their services, in this I said I was moving and gave them means to contact me (via email) - I also enclosed a cheque for the amount they had said I owed.

I also sent them an email a few weeks later as I had had no reply. They confirmed my identity then ceased to reply further (my assumption is they did not want to acknowledge the complaint). They didn't mention legal proceedings, not cashing cheques or that there was an outstanding balance.

 

I didn't realise they had messed up the accounts until I sat down and looked at them when I got the date for the set aside hearing. Now I know not only did I never owe the money, they owe me money.

 

I have had some correspondance with their solicitor this morning, I have asked for proof I ever owed the money. He has confirmed the only 'proof' they have is the list of transactions, this is the same as one that I have - and is the very thing I have cross checked with my bank statements to prove I have overpaid.

 

I haven't replied since and don't intend to until later today or tomorrow. I am not sure how to word my reply, but it will be along the lines of, I am happy to go to court.

 

I actually feel a bit sorry for their solicitor - less so because he told me they had recorded calls of me admitting to the debt and back tracked when I sent a written request to hear these calls - but he's clearly been given the wrong info' by his client.

 

I think their intention was to discredit any complaint I made to OFSTED by showing my to be a 'dishonest' (for want of a better word) character. After all, I would have had a CCJ against me for not paying them. I don't think they expected me to bite back and fight them.

 

Can I add to expenses that I was declined a loan? I called my bank a while ago (Jan) to enquire and they said no. I put this down to the financial climate and luckily had the amount I needed in savings so I paid what i needed in cash. But they have tarred my credit record for the past 9 months too.

 

Ezy

 

Of to cinema with the kids whilst Mr Solicitor awaits a reply from me.

[EzyChic]

New development! My ex just informed me he's paid them before. He's trying to trawl through his bank statements. So for he's found a payment of £600 to them!

[EzyChic]

Claimants today agreed to settle out of court on my terms (I was VERY reasonable) they say they will write to the courts and agree the judgement be set aside, once they have confirmation the judgement has been set aside, they will send me a nice cheque.

 

The money isn't in the bank yet.

 

But I'm feeling a bit smug and haveing a G&T to celebrate - the champagne is ready for after the hearing.

 

Ezy