Writ without reason

[wonkeydonkey]

Ok heres the story and if anyone can offer advice or opinion I would be extremely grateful.

 

There was a ccj and agreed repayment to £100pcm (debt commercial) debtor has paid religiously on the 1st of each month for over a year. Claimant went back to court to vary order to increased payments...Judge ordered payments remained the same until further order and advised claimant to accept what was on offer or risk the debtor declaring bankruptcy.

 

Payments continued without fail and much to the debtors surpise a HCEO turned up at the premises last week, Debtor told transfer to writ of fi'fa' was due to the March payment not having been paid......online banking showed this was not the case and payment had been cleared and credited to the account of the Claimant.

 

A few phone calls later the HCEO was able to tell debtor it was the February payment that had been returned unpaid..debtor checks bank statement again and finds no evidence to the cheque sent to the creditor having ever been presented to the bank.

 

Bank confirm they have no record to the cheque having been returned or that the customary "refer to drawer or please re-present" have seen due process also there have been no charges debited to the account as is usual when cheques are refused and that funds were available if the cheque had been presented to meet payment to it.

 

There has been no communication/contact, made by the creditor to the debtor and the debtor has had no details to all of this or sight of the cheque, so basically I guess it could be said that unless the debtor knew about the problem, they faced the impossible to address it.

 

HCEO carried out his levy to goods that are listed by him to be worth at best £200 on a £6k debt and told the debtor the repayment were to be set at £100 pcm (exactly the same as before) debtor refused to sign WP but paid the alleged £!00 missing payment with the instruction it was in respect of the alleged missing February payment and not to be used for any other purpose.

 

Now the debtor has a situation whereby the repayments are no longer to be to paid the Creditor with future payment being made to the HCEO and the fees to his 1 visit and an invalid levy have added £1320 to the debt. Stay to the writ has been applied for but I can see nothing to suggest a possibility to an application to set aside of it.

 

Any legals who can advise the way forward would be appreciated as I cannot avise the debtor further.

 

Thanks in advance

 

WD

Edited March 29, 2012 by wonkeydonkey

[Ganymede]

Hi there,

 

Did you make February's payment? Is it a case that the cheque was lost in the post?

 

It is your responsibility to ensure that the cheques arrive on time/at all and so if a payment was missed for whatever reason then the Claimant was perfectly within their rights to instruct a HCEO.

 

However, you can dispute the HCEO fees if they are excessive. Do you have a further breakdown?

[wonkeydonkey]

The cheque was received and they claim presented and refused by their bank....the debtors bank have no record of the cheque ever being presented let alone returned, I can see nothing on the bank statements to show the cheque was returned and the bank confirm that, it is told that the cheque if returned would have been clearly marked "refer to drawer please re-present" the bank have confirmed they never processed such a cheque and having been hit myself with charges for a returned cheque I even checked to see if the debtor had been levied with those charges and the answer is no charges applied to their account.

 

A stay to the execution of the writ is going through the motions as we speak but my question is...... does anyone know if it is possible to set aside a writ in the same way it is possible to set aside a Judgment?

WD

[AndyOrch]

You can only stay and suspend the Writ, you set a side the initial judgment.A hearing date will be set. This can be some weeks away. It may mean that enforcement officers will call out in the meantime. If your application is urgent, ask your court if they will agree to hold an immediate hearing and agree to an interim order suspending the writ.

 

Regards

 

Andy

[wonkeydonkey]

Thanks Andy

 

I am very familiar with the Court system but this one was run past me and I was stumped, my brain failed to get into gear but your nudge with that advice has turned my the light back on....the suspension of a writ was what I just could not for the life of me remember ...bless you for the kick start I can now steer them

in the right direction.

 

WD