**urgent hillesden defence due today****

[kayastley]

Hi all!

I've been so busy sorting out 2 other defences for my OH, that I completely lost track of the date. Right!

Claimant: Hillesden Securities (prev Black Horse)

Amount: less than 5k.

Aos returned disputing full amount.

 

 

I have received no NOA, DN or response to my CPR31.14 request. I didn't know that Black Horse had sold the debt and the trouble started when I tried to reclaim my PPI from Black Horse 4-5 months ago. My PPI claim has been rejected but I am appealing (just with Black Horse at the moment but to FOS if necessary). My defence is due today and I'm really unsure what to do regarding what to say in my defence as the amount Hillesden are claiming for is directly related to my PPI claim. I don't know what the o/s balance would be without the PPI. I did default after running into financial difficulties back in June 2012 but I had sent a CCCS letter asking for reduced payments in 2010 - no response. We've seen through the recession and clung on by our literal fingertips, so don't want to fall at the hopefully final hurdle. I'm absolutely up to my neck in legal battles at the moment and just need some help to decide the best possible cause of action. Don't want CCJ as just going through Foster caring training. CCJ = no fostering.

All advice welcome.

With kind regards

Kay

Hillesden CC claim form 09.07.12.pdf

Edited August 11, 2012 by kayastley

[nicklea]

Although these are perhaps not directly relevant to your case they may help:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?291412-Cabot-Court-Claim-Received&p=3286545&viewfull=1#post3286545

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?178915-Defence-required-for-Claim-form-Barclaycard-CL-Finance-Howard-Cohen&p=2128560&viewfull=1#post2128560

[unclebulgaria67]

Embarassed defence due to them not responding to your CPR 31.14 request ?

[kayastley]

Good afternoon all,

Well after round one with HSBC, I now have an additional problem with Hillesden Securities/Black Horse.

My question is.. Can a debt be enforced if the Default Notice was issued AFTER the debt was sold?

 

I have received a Default CCJ by Hillesden Securities. I requested documents under CPR 31 (1st request - 29.07.12, 2nd request 13.08.12) but didn't receive a response until 20.11.12. Included in the paper work is the Default Notice from Black Horse dated 15.06.2010 and the Debt Sale agreement between Black Horse (original creditor) and Hillesden dated 04.06.2010.

 

This means that the debt was sold on 11 days before the DN form Black Horse was issued. Even though Black Horse didn't own the debt anymore. Can they do this?

 

I have now received a Default CCJ payable "Forthwith" on 16.01.13 for the full amount and have today received a notice of transfer of proceedings from the Court stating the claim has been transferred to my local court for enforcement.

The 14 day period for responding to the CCJ is up today (plus time added for service) and I'm not sure if it's a N244 or N245 form I need to submit to ask for the CCJ to be overturned and also whether to send the form to the original issuing Court - Northampton or the Court now dealing with the Enforcement - Birmingham.

Just another thing, I submitted my original defence in response to the Claim in time to the Court (MCOL) and have just noticed that the case wasn't transferred to my local Court. Strange!!

 

Just to clarify, I didn't action this earlier not because I couldn't be bothered, I have been so caught up with my fight against HSBC/Restons, that I completely forgot about the timescales and received a CCJ in default for not responding quickly enough.

 

All advice welcome.

Kay x

[AndyOrch]

Hi Kay

 

In response to your salient points.....

 

" My question is.. Can a debt be enforced if the Default Notice was issued AFTER the debt was sold? " It can be issued by either the OC or the assignee but should be in the OCs name if the default occurred whilst under their control.It would depend on the level of assignment and how the the debt has been assigned.

 

"The 14 day period for responding to the CCJ is up today (plus time added for service) and I'm not sure if it's a N244 set a side or N245 form I need to submit to ask for the CCJ to be overturned and also whether to send the form to the original issuing Court - Northampton or the Court now dealing with the Enforcement - Birmingham.

Just another thing, I submitted my original defence in response to the Claim in time to the Court (MCOL) and have just noticed that the case wasn't transferred to my local Court. Strange!!" Default Judgment ? no need to transfer.Was the claim Allocated?

Regards

 

Andy

[kayastley]

HANG ON!

I filled my defence to the Claim form using MCOL. How come, this has been dealt with without a hearing!!!!

How can they obtain a default CCJ if I responded to the Claim Form stating I was intending to fight the whole amount!!!!!

Kay x

[AndyOrch]

Did you receive Acknowledgment from Northampton re defence entered and forwarded? Did you check the status if it was stayed? If not stayed did you query why no Allocation Questionnaire or allocation?

[kayastley]

Hi Andy,

Thanks for responding so quickly...again Just going through the paperwork and I've found an Application Notice dated 06.12.12 and a General Directions Order dated 02.01.13 ordering that:

"The stay be lifted and the defence is struck out pursuant to Civil Procedure Rule 3.4(2) (a). I know what the CPR 3.4 2(a) means after HSBC/Restons.

Oh Bugger! I can't believe that I haven't actioned this. I've been so busy with Restons that I've shot myself in the foot here.

Any suggestions Andy???

Kay x

p.s. Just going to pick my little one up from nursery so may not respond to any reply's for a while

[AndyOrch]

Kay I thought I had trained you better than that:sad:

 

CPR3.4 (2)

 

(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2) The court may strike out(GL) a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;.

 

Your defence was due in August in 2012 they made application in Dec 2012 (did you receive notification from the Court or the claimant...? any hearing? what evidence was attached to the application?)

 

 

Judgment without trial after striking out

 

CPR3.5

(1) This rule applies where –

(a) the court makes an order which includes a term that the statement of case of a party shall be struck out if the party does not comply with the order; and

(b) the party against whom the order was made does not comply with it.

(2) A party may obtain judgment with costs by filing a request for judgment if –

(a) the order referred to in paragraph (1)(a) relates to the whole of a statement of case; and

(b) where the party wishing to obtain judgment is the claimant, the claim is for –

(i) a specified amount of money;

 

Setting aside judgment entered after striking out

CPR 3.6

(1) A party against whom the court has entered judgment under rule 3.5 may apply to the court to set the judgment aside.

(2) An application under paragraph (1) must be made not more than 14 days after the judgment has been served on the party making the application.

(3) If the right to enter judgment had not arisen at the time when judgment was entered, the court must set aside(GL) the judgment.

(4) If the application to set aside(GL) is made for any other reason, rule 3.9 (relief from sanctions) shall apply.

 

Challenging orders for summary judgment or strike out

 

A party can challenge an order made by the court on its own initiative (either with or without a hearing) asking for it to be set aside, varied or stayed. An appeal against any order can be made, whether the order arose out of a party's application or the court acting on its own initiative.

 

Only the above should be considered if you have a defence with merit.

 

Regards

 

Andy

[kayastley]

Sorry Sensei ,

In response to your questions:

 

Your defence was due in August in 2012 they made application in Dec 2012 (did you receive notification from the Court or the claimant...?) -] I received notification from the Court attached to General Directions]Order for the stay to be lifted and defence S/O

.

any hearing? - They requested "Without a Hearing" on the Application Notice.

 

what evidence was attached to the application?) - No evidence attached on the copy sent from the Court.

Aren't they supposed to send me a copy of the App Notice so I have chance to respond???

 

I'm just putting little one to bed and then I'll scan up my documents.

Thank you

Kay x

[kayastley]

Hi Andy,

I've attached the:

Claim Form issued 09.07.12

The Application Notice (Court Copy) and Directions Order to lift Stay and S/O Defence issued 02.01.13 (which came together) - No copy from Claimant prior to Directions Order 02.01.13.

Forthwith CCJ Order issued 16.01.13.

I will upload the CPR31 response letter, Default Notice, Final Demand letter and debt sale agreement tomorrow, as I need to get some sleep.

Question?

I've just noticed that on the POC's on the Claim Form, it states that all legal and beneficial interest for the monies was assigned to Hillesden Securities on 29.03.2012 although the Debt Sale Agreement is signed 04.06.2010.

 

Do you think it's worth trying a N244 to have the Judgement set aside or should I just try for damage limitation as it has been transferred for enforcement? ]You know I'm always ready for a fight but I don't want a Pyrrhic victory.

Should I just bite the bullet on this one???

Kay

x

[steampowered]

CPR 3.6 (2) - An application under paragraph (1) must be made not more than 14 days after the judgment has been served on the party making the application.

 

 

The CCJ is dated 16 January 2013. When was it served? It is now 31 January...

[kayastley]

Thank you for your reply steampowered.

The CCJ was issued 16.01.13 but it was sent 2nd class with Royal Mail, so I didn't received until Monday 21.01.13. I appreciate that the timescale is tight but I wanted to get advise before I actioned anything.

Kay

[AndyOrch]

HI Kay

 

Where is your defence?

[kayastley]

Good evening Andy,

I've posted my original defence in response to the Claim form. This is the only defence I have filed. I know I've messed up with this case and just wonder whether it's better to contact Hillesden and see if I can sort out a payment arrangement with them or apply to the Court to ask for the Judgement to be changed from 'Forthwith' to an installment order.

Can I still do that even though it has been transferred for enforcement?

 

I will contest the Judgement if I have grounds but I have to hold my hands up to this one and admit that although they have made some mistakes, it is my fault ultimately for not taking action sooner.

What do you think?

With thanks

Kay

[kayastley]

Here are the other documents:

CPR31 response letter

Debt sale agreement pg1

Debt sale agreement pg2

Debt sale agreement terms pg3

Financial History.

I will attach in the following post:

Default Notice 15.06.2010

Final demand letter

[kayastley]

And as promised:

Default Notice 15.06.2010

Final Demand letter

Generic assignment letter - date unknown.

Kay x

[AndyOrch]

Hi Kay

 

I have unapproved the last upload... you have left your name on it.....the blacking out of the others is also not very good.Anyway I have seen all the paperwork now and apart from the DN and FD the rest is fantasy and of no use or valid.

 

Your defence is a pure templated copy of defences from this site and I am not surprised they requested SO..in all honesty.Even if you did action the Order on time your defence would need a lot of work.

You are entitled to set a side a Default Judgment yours is irregular (You submitted acknowledgement and a defence) and by law must be allowed.Disregard the 14 days litigants are allowed allowances and the Courts are so far behind and swamped they cant instil the time frames.

 

I personally would bite the bullet and put this down to a loss and inexperience.

 

With regards to your post # 15 you must make application to amend forthwith to instalments using the N245 do this asap ...with the Court.Never make arrangements with the Claimant on a Judgment.

Now transfer for enforcement...I assume you have not received anything from the Land Registry? If not then they are not going for a CO.

 

Regards

 

Andy

[kayastley]

Hi Andy,

Thank you for your last response. Sorry about leaving personal details in my post, I had checked them but obviously not close enough. I appreciate the honesty. It was a straight template copy from the CAG website but at the time I didn't know any better ( Amazing how fast you learn when you have to) .

I am a little confused with your advice though in the last post, should I apply for the CCJ to be set aside then, using the N245 or should I let the CCJ stand and request application to the Court for instalments using N245?

I haven't received anything yet from Land Registry so I assume it would go to the Baliffs if I didn't action it, although that's not going to happen.

With warmest regards

Kay

x

[AndyOrch]

No as I said ..... I personally would bite the bullet and put this down to a loss and inexperience. I was merely stating the fact that you are allowed to set a side for the reasons I stated but you would struggle with your defence which would affect the dJs decision to allow so why bother.

 

The N244 is used to set a side for reference .....the N245 is used to make application to vary.

[AndyOrch]

As an aside do you have or ever asked for a copy of the CCA? I cant see any reference or upload.

[kayastley]

Hi all,

All has been well until recently. I just need some advice please. I sent my Court form requesting the Forthwith CCJ be varied to monthly installments with I&E on 31.01.2013. (Cheque has been cashed in Feb 13) On exactly the same day my creditor's (DLC) solicitor (Aplins) sent in a Charging Order application to make Nisi = Final. I have a Court hearing for CO on 12.04.13 but have heard nothing regarding my CCJ variance order. I have spoken to the Court twice who state they have sent the Variance forms to creditors solicitors )Aplins) on 08.02.13 but have had nothing back and cannot proceed without a response. The Creditor (DLC) have heard nothing from their solicitors regarding this paperwork but have agreed to the installment arrangement I have applied to the Court for (1st payment due 01.04.13).

I am fuming as the solicitors are blantantly sitting on the paperwork so they can secure a CO. I know the Court has to consider the variance order before the CO application and I am filing a defence and attending in person for the hearing but need to know who to contact first regarding getting the variance order heard first.

SURELY there is a time limit following the receipt of court documents that the receipient must respond by??? They received it on 08.02.13, thats 6 weeks ago!!!!!!

Kind regards

Kay

[AndyOrch]

Makes no odds now kay since changes of Oct last year they can apply for a CO irrespective of an installment order in place but .....

 

Section 94 of the Tribunals, Courts and Enforcement Act 2007 was brought into force on 17 May 2012. The Act incorporates a new section 3A into the Charging Orders Act 1979 and has given the Lord Chancellor the power to make regulations providing that:

 

charging orders may not be imposed to secure an amount below a certain threshold; and

charging orders may not be enforced by orders for sale if the amount in question is below £1,000. This will only apply to debts regulated by the Consumer Credit Act. Indications at the current time are that this change will be introduced in December 2012

 

Section 93 of the Tribunals, Courts and Enforcement Act 2007 will come into force on 1 October 2012. The amendments allow an application for a charging order to be made in cases where the debtor has not defaulted on payment of an instalment judgment

 

The court must take into consideration the fact that there has been no default when deciding whether to grant the order for sale; and any order for sale to enforce the charging order may not be made at the same time as the application for the charging order unless the whole or part of an instalment which falls due under the judgment remains unpaid.

 

As matters currently stand, if the debtor is making payment under an instalment judgment, it is not possible to apply for a charging order until a debtor defaults in payment of any of those instalments. Under the new legislation, even if a debtor is adhering to judgment instalments, the creditor is still entitled to secure the debt by way of a charge however, as indicated, the court must take into account that payments are being maintained when deciding whether to impose a final charging order over the debtor’s property.

 

Once a charge is in place, a creditor may consider the use of an order for sale to recover the sums secured. A charging order may not be enforced unless, at the time of the application, the whole or part of any instalment remains unpaid. It therefore follows that if the debtor brings instalments up to date at any stage, the Judge will be bound to dismiss the application. This could lead to last minute applications for relief by debtors facing eviction which in turn could lead to increased costs for creditors.

 

Concerns were raised that the £1,000 threshold would lead to more creditors petitioning for the bankruptcy of debtors, rather than seeking enforcement measures. These concerns have to be contrasted against the costs involved in bankruptcy. On balance, the new threshold is unlikely to result in a significant increase in bankruptcy petitions. In any event, the threshold only applies to Consumer Credit Act regulated debts.

 

The reforms will make it easier for creditors to seek security for instalment judgments they have obtained against debtors. However, creditors need to consider the position carefully, particularly where there has been no default in payment of instalments. It may be that an alternative method of enforcement is more appropriate.

 

Regards

 

Andy