Small claims court issues! *** Settled***

[nomorestudent]

Hi there - I recently made a claim through the scc, having exhausted all the polite steps and recieved only abuse from the defendant. He did not respond, so I entered a judegment by default. he still did not pay, so I sent a polite letter asking for payment or i would get a warrant of execution. I then recieved payment. All well and good. A few days later, i recieived a very unpleasant letter from him saying he didn't know anything about a small claims case, had never received any papers and was stopping the cheque. I assume he will apply to have the judgement set aside, but how will this work - I enclosed a copy of the judgement when i sent the letter to remind him and he must have read it before sending the money! What should i do now?? Thanks

[raydetinu]

Has the cheque cleared?

It will be up to the judge if he allows it to be set aside, you can oppose it.

[nomorestudent]

Has the cheque cleared?

It will be up to the judge if he allows it to be set aside, you can oppose it.

 

The cheque cleared but he still took it back, leaving me overdrawn..

[raydetinu]

he cant if over 6 days!

[nomorestudent]

it was three days, but I had been able to draw on it, so had done!

[raydetinu]

Yep you fell foul of the 2/4/6 day rule, after 2 days it can earn interest, after 4 days you can draw on it, after day six they cant overturn the payment, the funds are then removed from their account and its yours, unless fraud is involved.

That applies to business cheques to.

there are may horror stories that go with that one.

the fact that he gave you a cheque in the first place is a good sign for you, suggest you add these costs to your claim when goes to hearing.

[nomorestudent]

But how will he get the judgement turned over if he paid without quibbling initially, and staiting he didn't receive either the claim or the judgment but all of my correspondance....?

[raydetinu]

set aside is not turning over, its just setting the judgement aside til he has a chance to defend.

The judge may well deny him that opportunity and let the initial judgement stand.

[nomorestudent]

Sorry to keep asking questions, but is this likely ? I mean the papers were all clearly served, he paid me, (before taking it back ) ? Is 'not getting the paperwork' a defence? My correspondance to him went to the same address adn got there...

[citizenB]

The court would also have sent him copies of the claim and also the Judgment.

 

You need to keep an eye on this. He could simply be saying he will apply to have the judgment set aside and then not do it ?

 

He needs to apply on form N244 stating his reasons for requesting the set aside. It is up to the Judge whether or not this will happen. Then the claim will have to be brought again.

 

I will try and find someone who can help you.

[nomorestudent]

Yes, they would have sent them, he's just denying he got them...Thanks so much for your help.

[Mike_hawk]

What was the value of the judgment?

[raydetinu]

I would be inclined to go for a warrant now, and see what he does then.

He is just playing games and does not want to pay you.

[nomorestudent]

It's less than £500. I will go for the warrant I think - or at least warn him I am and that the extra £100 will be added.

[citizenB]

It's less than £500. I will go for the warrant I think - or at least warn him I am and that the extra £100 will be added.

 

send him a letter via Recorded or special delivery and a copy of the judgment. Give him 7 days to repay the monies owed or you will take further action by way of the warrant when a further cost of £xx will be added to the monies due.

[Mike_hawk]

It's a pity it's not above the HCEO threshold of £600.00, if you retained a copy of the cheque [or if your bank can provide the transaction details] you could apply for a 3rd party debt order....... but unfortunately it's a bit of a one hit wonder, if there's no money in the account when you apply you gain nothing but further costs to recover

 

N349 is here, http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n349-eng.pdf believe the fee is now £100.00.

 

There are other options but they are fairly limited due to the value, court bailiff is one cheaper option but tbh they won't expend much time or effort in a £500.00 judgment.

[nomorestudent]

That's pretty mch what I did last time. he sent the money straight away as I said but then decided he hadn't known anything about a Claim! I will do it once more. This time not being quite so friendly..

[nomorestudent]

We have the cheque as it was sent back to us.

[Mike_hawk]

We have the cheque as it was sent back to us.

 

Worth a try I guess....... just checked and the debt order and warrant now carry the same fee, it'd have to be a question of which you're most comfortable with and which you believe would have the greatest effect. Never an easy solution recovering the money if somebody simply doesn't want to pay

[nomorestudent]

I think I'll carry on with the route of writing to him again, and then see what happens. he will be paying to get the judgement set aside i guess, so in the long run, he's losing out. All we have lost is £25 - plus of course what he owes us. What he owes us would be wonderful to get back as I feel he really should pay, but to be honest, he is being so unpleasant I intend to take this as far as possible as it's really becoming a principle as much as anything else. I have been seriously upset and verbally abused by this person when absolutely none of it was necessary. Not a nice situation.

[Mike_hawk]

Just wondering if a simple witness statement to the court with a copy of his cheque and some form of evidence [copy bank statement] would prevent him from being granted relief.

 

Certainly couldn't do any harm to make the court aware should he apply for set aside.

[nomorestudent]

Well my thoughts were that surely, if he had any sense, he would have read the copy of the judgement I sent with a request for payment and thuoght 'hang on' before sending the money and then thinking - well whatever he thought - ie: 'ooh I didn't get those papers', or 'shall I say I didn;t get those papers'... Surely by sending the money he is admitting that he owed it?? To suddenly remember he didn't know anything about a court judgement seems well a bit odd..

[Mike_hawk]

Does sound a tad 'suspect'

 

How about applying a little additional pressure? If you want to give him a final opportunity ask him to re-issue the cheque or you will also be pursuing a second case for damage pursuant to s.43 Bills of Exchange Act 1882

[andydd]

IF it does get to a set aside hearing then show the Judge the abusive letters and the fact the cheque bounced, that would not look good for him, also fill in a schedule of costs (point out you sent Notice before action letters (thus following the CPR pre-action protocol partly) and ask bearing in mind the defendants action you wish to claim your costs).

 

In deciding whether to set aside the Judge will look at the defendants actions and also whether he has a reasonabkle defence.

 

If the case is set aside and re-listed and you believe the defendant has no possible defence and is just wasting your/the courts time its possible to follow the Summary Judgment route.

 

As a litigant in person you can claim costs at £18 per hour.

 

Andy

[nomorestudent]

excellent stuff. Thank you. I'm loving the 1882 act.