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    • Hi Manxman, Yes, the contract was signed on-line and I'm relying on s31 of CCR.  I think what you are alluding to is the fact that if the contract started within the first 14days and if it was commenced with the expressed consent of the consumer (on a durable medium such as letter or email not phone call or webforms), then the consumer has to be pay for the portion of the services that was provided. Also, if the service has already been completed (which is not the case here as the service will be completed after 12months from the commencement of the tenancy which never commenced) then, full service fee is payable. In this case, no express consent was given - I have checked all my emails to them so they cannot charge for the portion of the services either i.e. arranging some viewings and finding a prospective tenant. In fact, I offered to pay for the reference check costs but they want it all. There was an implementing guidance on CCR2013 which categorically says that the regulation applies to letting agent's services - I have attached it here. At the end of the day, regulations are regulations and if anything, consumer is recognized as the weaker bargaining party as the contract was created by the business. Please google Robertson vs Swift - case prior to CCR 2013 came in where the supreme court ruled in favour of the consumer and went above and beyond what the regulation said at the time (although it derived some criticism).  bis-13-1368-consumer-contracts-information-cancellation-and-additional-payments-regulations-guidance (1).pdf
    • No I didn't, in 2018 my laptop was unable to download open office.   I have attached the ci sheet from 2017, with all the charges listed up to then.   StatIntSheet v101 Charges V2.xls
    • According to MCOL,the claim was registered as issued on 23 November so that makes it 12 December by my reckoning-I wasn't sure if you counted the 14 days from the 5th day or the day after so I went for the latest possible date.
    • nickpatel - presumably you entered into this contract with the agent off-premises if you were thinking of possibly trying to use s31 of the CCR?   If that is the case then I was under the impression (although I may well be mistaken) that the 14 day cancellation right was lost in the case of a contract for services, if the provision of those services commenced within the 14 day period, which would make whether or not you were informed of the right a moot point as it would no longer apply(?).   In any case, I'm also a bit surprised that a situation could arise where the initial "cancellation period" of a contract for services could be extended to over 12 months.  It seems a bit extreme to me that the 14 day off-premises cancellation provisions would apply here.  But I may be wrong.   I tend to agree with BankFodder that you'd be on firmer ground arguing the amount of the fee claimed (for a full year) is unfair.  But I'm not sure you could get away with arguing that you owe nothing - even though there is no tenancy agreement.  The agent seems to have done what they agreed to do, but you decided to reject the prospective tenant on the grounds that they were not "transparent"(?) because they wanted to view the property for a third time.  I'm not sure a court would find that reasonable on your part and would probably consider that the agent deserves to be paid in some respect for their work in finding that prospective tenant.   I think I'd be trying to settle on a reasonable sum rather than arguing that there was no liability at all.
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High Court Writ Enforcement


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Hi

 

Can this High Court Writ be actioned?

 

Basically received a writ today regarding a judgement hearing that i paid last month.

 

time line of events:

 

Jan 2011 Judegment made against me

Feb 2011 Appeal Hearing Application made and court agreed for appeal notice (any enforcement of judgement and writ placed on hold until hearing)

Feb 2011 High Court Writ made (notified office that this cant be enforced due to appeal, they agreed)

Jan 2012 i decided to make Payment on Judgement and request to adjourn/cancel appeal hearing made

Jan 2012 Appeal struck out as payment made, Judgement marked as paid

Feb 2012 Claimant requested New Writ issued based on original judgement

 

Speaking to the Sheriffs office they state that a writ has 12 months validity ,can a new writ be issued from a judgement already paid?

As the original writ had been placed on hold and then expired can they enforce this further with a new writ?

 

Any Help?

 

Many Thanks

Ang

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Best to send them a copy of the certificate of satisfaction or it's Scottish equivalent. I note you say the judgment has been marked as paid.

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Ive requested a certification of satisfaction, the amount i paid covers the full judgement, they have taken that amount off the new writ but are asking me to pay for the fees of the writ, bailiff charges etc, of the original writ that expired as well as new charges on the new writ issued Feb 2012, im stating that the judgement was paid before the appeal hearing and that the writ that was on hold during that time has now expired, and that the new writ is not valid as it was issued 1 month after the judgement was paid.

Am i correct in this? i understand that there was a window between Jan 2012 - feb 2012 where the original writ could of been actioned as it was still valid after i had made payment on the judgement but this expired Feb 2012 hence the issue of a new one.

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You shouldn't have to pay for the Feb 2012 writ as the judgment was satisfied by then. As for the Feb 2011 writ it'll depend on the exact timeline as if the writ was applied for before the stay, even if enforcement wasn't attempted until after, you would be liable for the costs I imagine.

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I assume that after the original Judgment was made a Writ of FiFa was obtained. Did you then apply for a Stay of Execution? If so what were the grounds it was granted on? You have then applied for an "appeal" but before it can be heard decided to pay the original Judgment. In my view therefore the Claimants costs of applying for the Writ & its renewal are justified. What charges have been applied so far?

 

PT

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You shouldn't have to pay for the Feb 2012 writ as the judgment was satisfied by then. As for the Feb 2011 writ it'll depend on the exact timeline as if the writ was applied for before the stay, even if enforcement wasn't attempted until after, you would be liable for the costs I imagine.

 

Feb 2011writ came after the stay about 1 week later, they did not know at that point of the appeal hearing being granted and stay, this writ expired Feb 2012

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I assume that after the original Judgment was made a Writ of FiFa was obtained. Did you then apply for a Stay of Execution? If so what were the grounds it was granted on? You have then applied for an "appeal" but before it can be heard decided to pay the original Judgment. In my view therefore the Claimants costs of applying for the Writ & its renewal are justified. What charges have been applied so far?

 

PT

 

writ charges are currently around £1500 on a £1200 judgement, the permission to appeal was granted with a stay - under what basis i am not sure - i am guessing because an appeal application was agreed and a date set for an appeal, following this a week later the writ arrived based on the judgement the month before.

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I have a bit of difficulty in understanding how you can have a Stay for something that has not yet been raised. When you say "appeal" do you mean an application to set aside or something else. I'm not trying to pry but get right as to what has actually happened.

 

Working off the above I assume you had Judgment made against you - was this a Judgment by Default?

 

PT

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I have a bit of difficulty in understanding how you can have a Stay for something that has not yet been raised. When you say "appeal" do you mean an application to set aside or something else. I'm not trying to pry but get right as to what has actually happened.

 

Working off the above I assume you had Judgment made against you - was this a Judgment by Default?

 

PT

 

After Judgement was made (at a Hearing) i immediately applied for a permission to appeal hearing, this was granted by the court about 2 weeks later and an appeal hearing date set - the court advised that no further recovery on the judgement can take place, the claimant applied for the writ in-between judgement and permission to appeal notice being made

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After Judgement was made (at a Hearing) i immediately applied for a permission to appeal hearing, this was granted by the court about 2 weeks later and an appeal hearing date set - the court advised that no further recovery on the judgement can take place, the claimant applied for the writ in-between judgement and permission to appeal notice being made

 

Understand now. What I see of it is that:

1 - Judgment was made against you

2 - as no payment forthcoming Claimant has transferred it to High Court for enforcement

3 - appeal granted by Court including Stay on enforcement

4 - you elect to pay Judgment only

5 - appeal struck out

6 - asked to pay Writ

 

The problem I believe lies that the Writ was granted before any appeal was granted and as you say enforcement was halted. However this does not kill the Writ off and it was rightly renewed after the initial 12 month period was up. However I would argue that the HCEO has not actually done any work and would argue that if you were due to pay any costs then it should only be for the initial Writ & its renewal - approx £110 in total. If you had gone ahead with your appeal and won this would have negated the Writ and there would be no further costs to bear.

 

How to overcome the HCEO

1 - who did you pay the Judgment costs to?

a - the Court?

b - the Claimant and if so how did you pay, if by cheque has this been cashed?

c - a 3rd party?

I won't go any further at present as I hope you are going to tell me the answer is 1b

 

PT

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Understand now. What I see of it is that:

1 - Judgment was made against you

2 - as no payment forthcoming Claimant has transferred it to High Court for enforcement

3 - appeal granted by Court including Stay on enforcement

4 - you elect to pay Judgment only

5 - appeal struck out

6 - asked to pay Writ

 

The problem I believe lies that the Writ was granted before any appeal was granted and as you say enforcement was halted. However this does not kill the Writ off and it was rightly renewed after the initial 12 month period was up. However I would argue that the HCEO has not actually done any work and would argue that if you were due to pay any costs then it should only be for the initial Writ & its renewal - approx £110 in total. If you had gone ahead with your appeal and won this would have negated the Writ and there would be no further costs to bear.

 

How to overcome the HCEO

1 - who did you pay the Judgment costs to?

a - the Court?

b - the Claimant and if so how did you pay, if by cheque has this been cashed?

c - a 3rd party?

I won't go any further at present as I hope you are going to tell me the answer is 1b

 

PT

 

Thaks PT!

yes thats it....

yes 1b is the answer....this was for the full judgement amount that included the costs which was applied at the end of the hearing when judgement was granted in the claimants favour....i rang the court to ask who i should pay and was advised to the claimant and sent a cheque recorded direct to their address this was then cashed 1 week later.

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Thaks PT!

yes thats it....

yes 1b is the answer....this was for the full judgement amount that included the costs which was applied at the end of the hearing when judgement was granted in the claimants favour....i rang the court to ask who i should pay and was advised to the claimant and sent a cheque recorded direct to their address this was then cashed 1 week later.

 

Could be magic. I'll leave you with a link to read as I have to be up early in the morning. Read:

What if I do a deal with the defendant outside the enforcement process, who pays your fees? at http://www.thesheriffsoffice.com/faq/

 

The Claimant should have known this as it is one of the things they are told prior to the Sherriffs Office accepting the work. Make sure you still have the Recorded Delivery slip, also print off receipt of delivery from Royal Mail Track & Trace & proof of the cheque being cashed - send a letter to the SO and suggest they look to their client for their fees as I think I can guarantee they will not have told the SO you have paid.

 

PT

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Could be magic. I'll leave you with a link to read as I have to be up early in the morning. Read:

What if I do a deal with the defendant outside the enforcement process, who pays your fees? at http://www.thesheriffsoffice.com/faq/

 

The Claimant should have known this as it is one of the things they are told prior to the Sherriffs Office accepting the work. Make sure you still have the Recorded Delivery slip, also print off receipt of delivery from Royal Mail Track & Trace & proof of the cheque being cashed - send a letter to the SO and suggest they look to their client for their fees as I think I can guarantee they will not have told the SO you have paid.

 

PT

Music to my ears - thankyou so much for pointing that bit of information to me! Looking forward to calling them tomorrow! Many Many Thanks

Ang

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Well it turns out that the claimant passed on my cheque to the sheriffs office and they cashed the cheque - how they did that i am not sure as it was not made out to them, although they said they will not send any receipt of payment or any proof of payment or even send acknowledgement to the court to say the judgement was paid.

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