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Urgent CCJ Charging Order defence question. We applied for instalments first.


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Hi folks,

 

I have my final CO hearing on 10th Sept so need to post off my defence by tomorrow latest. I know I've left it late. But really need you guys help to understand a key point for my defence.

 

The basic facts:

- £15K CCJ for Director's Guarantee, major high street bank.

- Defendents are myself, my wife + another director we're not in contact with

 

Here is a timeline of events since the judgement.

 

1st March 2012: Judgement forthwith in favour of claimant in claimants local county court.

23rd March 2012: My wife and I each file an n245 applying to vary the order, offering £1 each (genuinely can't pay more, many creditors, I&E attached)

4th May 2012: Notice of transfer of Proceedings received from claimant's local court. Transferring to our local court "to give consideration to the Defendants' applications to vary the order/judgement".

9th May 2012: General form of Judgement or Order received from our local court, advising a hearing scheduled 11th June 2012. States our application to vary will be heard at the same time as the Charging Order, and the Interim Charging order to continue in the meantime. This is the very first we hear of an ICO.

31st May 2012: Notice of Hearing received for a "Redetermination Hearing" to take place on 16th July 2012.

10thJune 2012: I phone court asking for clarification on hearing dates. They tell me it's a good job I phoned as the 11th June hearing is cancelled. No reason given.

4th July 2012: General form of Judgement or Order received from our local court, advising that "upon reading a letter from the Claimants' solicitor", the 16th July hearing vacated, and a new hearing assigned for 10th September 2012.

9th July 2012: Letter and pack received from Claimants' sols with a copy of the original ICO from our local court dated 18the June, which we never received at the time. Says that the judge considered the Claimants' application on the 11th June, and that final CO hearing was scheduled for 16th July (now vacated, see above). Also enclosed is a copy of the Claimant's application for the CO, which is signed and dated by the claimant on 23rd May. Includes Shcedule of Creditors to be heard, and copy of Land Registry Register dated 21st May 2012.

 

I'm going to write a defence to send off tomorrow morning Recorded. It will just get there in time on Monday to be 7 days before the 10th Sept hearing. I've spent several hours on here familiarising myself with the arguments to use e.g. prejudice to other creditors, we're in negative equity, etc.

 

HOWEVER, here's what I don't understand which I really hope someone here can explain to me.

 

We submitted our application to vary on the 23rd March 2012. We clearly submitted it BEFORE they applied for the CO. However, according to what we received 9th May, the final CO and our application to vary will be heard at the same time.

 

So can I argue that our application should be heard first, the court should vary the CCJ so we can pay by instalments, and the claimant should only be allowed CO if we default on instalments?

 

Also, the Claimant applied for the CO on 23rd May, and the court considered their application on 11th June. So how come the Order we received dated 9th May mentions the CO, if the Claimant hadn't even submitted the application by then? Could there be anything fishy going on there?

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Thanks for the replies. I'm typing up our Defence now as I write this, basing it on the Defence that's been posted as an example on here a few times, from the other Cagger who successfully defended theirs.

 

How should I address in the Defence the peculiarities in how the Courts seem to have gone about things here, if at all? Is there a specific mistake that the court has made here that I can put in? Or would that risk upsetting the DJ?

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You could refer to CPR and PD73 to check if anything relevant in your case, if you believe there may have been a procedural error you should bring it to the courts attention within your witness statement.

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part73#id4541824

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part73#id4541905

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One other thing to possibly consider.... you noted the following:

 

- Defendents are myself, my wife + another director we're not in contact with

 

Have the other side received payment from, or been granted security against the other party?

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I've just gone through both the CPR and PD, they were relatively short. I could not see anything in there that would be useful, it doesn't seem to mention anything about existing applications for instalments.

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One other thing to possibly consider.... you noted the following:

 

- Defendents are myself, my wife + another director we're not in contact with

 

Have the other side received payment from, or been granted security against the other party?

 

Yes, on the Claimants' N379 application, the form has a section 7. for "Further Information", and is headed "The judgement creditor asks the court to take account of the following:". The Claimant has typed under that: "Since Judgement the debtor has made repayments of £300 towards repaying this debt."

 

We certainly didn't make any payments, so we can only assume it is the other Defendant who has done this. A Court Clerk told me over the phone it is only us they are trying the CO route with. We are not on good terms with the 3rd Debtor, but he definitely did not own a property before things broke down, but I haven't had any contact with him for about 2.5 yrs.

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I'd be inclined to include anything you feel is relevant, anything within the rule containing 'must' is not exactly negotiable - try CPR73.3. It's difficult to see how an ico was granted 2 weeks prior to the application.

 

The redetermination forms the judgment and should be heard before the final co is granted. Section 2 of the N379 applies, there may have been a forthwith judgment but in abeyance of determination I'd argue the judgment has not yet been set down.

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Thanks again Mike_hawk. I'll use those same words in my argument, "the judgment has not yet been set down" :-)

 

One question: Is a "Redetermination" just another term for varying the order? I don't know what a "determination" is. I saw something somewhere on the forum about checking if the CCJ was done correctly by checking the "determination".

 

Does the fact the 3rd Defendant paid something help us at all? i.e. in a kind of "why aren't you chasing him, he obviously has money, we don't" kind of way? I guess probably not.

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You can but I couldn't think of another way to state it; handed down, set down, ordered, ajudged..... hmmmmm, all carry the same meaning within the context of your statement I guess.

 

Re/Determination is probably best explained within part 14 [admissions 5.1 thur 6.2] - http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part14

 

I don't think that would be the right way to argue the case [3rd defendant], possibly better placed to argue that you may be prejudiced by the lack of transparency to any other payments or reduction of judgment sum.

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OK, am reading now about Determination....

 

Trying to finish my Defence to get it to the post by 12:30 :!: today for Recorded delivery to the Claimant Sols by Monday morning, as the hearing is on Monday 10th Sept (so that will be *just* in time to still allow 7 days as per the rules)

 

Does anyone know if I have to send them copy of Defence by post, or can I just fax it to them first thing Monday? Don't want to rush it if I don't have to...

 

I will hand deliver to the Court down the road first thing Monday morning so that's not a problem.

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Thanks again Mike_hawk. I'll use those same words in my argument, "the judgment has not yet been set down" :-)

 

One question: Is a "Redetermination" just another term for varying the order? I don't know what a "determination" is. I saw something somewhere on the forum about checking if the CCJ was done correctly by checking the "determination".

 

Does the fact the 3rd Defendant paid something help us at all? i.e. in a kind of "why aren't you chasing him, he obviously has money, we don't" kind of way? I guess probably not.

 

 

The judgment has been "set down" as you call it. There is a forthwith judgment in place, all you are doing is essentially varying the terms of the said Order.

 

Fax to the other side should be fine as long as their letter headed paper doesn't state they don't accept service by fax etc.

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Probably a bit late but.......... you should only serve by fax or e-mail if you have their prior agreement they will accept.

 

tbh, I think you'll struggle to overcome a fco but if it looks like its not going your way you should at least argue for terms within any order..... ie, no order for sale within the next xx months/years, regular statement of account, dislcosure of any agreement with 3rd defendant.

 

It does give the impression that they are inclined to accept payments from 1 defendant and hold security of the others.

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thanks all. Just got back from the Post Office, just got there on time at 12:27 and they almost didn't accept it for a Recorded but thankfully the postie hadn't been yet to collect mail from them. Phew ....

 

I gather from reading the forums that odds are against me stopping it but I'm not just going to let them get the Charge without a fight :-x

 

I hope my Defence is OK, but I guess I can't change it now that I've sent copy to the other side. As I say I'll hand my Defence in Monday morning to the Court personally.

 

So am I actually OK with this 7 day thing if both the Claimant and the Court get the Defence this Monday morning 3rd Sept? The hearing is Monday 10th Sept at 12 noon, so by my calcs they would have a full 7 x 24 hrs.

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thanks Ganymede.

 

One more quick question - thanks for being so helpful everyone - I headed it as a "Joint Defence", used "we" throughout, and signed by both myself and my wife. Is that OK? I assumed that surely it would be ridiculous to submit two separate identically worded defences from each of us.

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The judgment has been "set down" as you call it. .

 

Afternoon Gany

 

I don't believe that would be correct in the context of a c/o hearing, applications are heard in order of filing... redetermination could affect the outcome of the c/o [unlikely I know] but still a possibility. As far as I'm aware the effect of s.93 [2007 amendments to the charging order act] do not apply to s.53 of the c/o act until October so an instalment order should still be considered. The other side are attempting to enforce an order whilst awaiting the outcome of a judgment yet to be heard.

 

Still can't work out how the ico was granted or noted prior to the application? The only thing I can think of is a possible N24 hybrid type order but I thought the courts had distanced themselves from that approach.

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thanks Ganymede.

 

One more quick question - thanks for being so helpful everyone - I headed it as a "Joint Defence", used "we" throughout, and signed by both myself and my wife. Is that OK? I assumed that surely it would be ridiculous to submit two separate identically worded defences from each of us.

 

 

I think you should have filed seperate Witness Statements objecting to the Charging Order but I guess it is too late now.

 

Also technically it is not a "Defence", it should be a Witness Statement giving your reasons you object to the CO.

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Afternoon Gany

 

I don't believe that would be correct in the context of a c/o hearing, applications are heard in order of filing... redetermination could affect the outcome of the c/o [unlikely I know] but still a possibility. As far as I'm aware the effect of s.93 [2007 amendments to the charging order act] do not apply to s.53 of the c/o act until October so an instalment order should still be considered. The other side are attempting to enforce an order whilst awaiting the outcome of a judgment yet to be heard.

 

Still can't work out how the ico was granted or noted prior to the application? The only thing I can think of is a possible N24 hybrid type order but I thought the courts had distanced themselves from that approach.

 

 

It is very odd that the Court refer to an ICO weeks before the application is even made by the Claimant. However, I don't see this will have any affect onthe outcome as unfortunately the Court has within it's power to list both hearing for the same day.

 

Also, and sorry to sound negative, but I cannot see the Court varying the CCJ to £1 pcm month on a £15k debt and not allowing a Charing Order.

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I think you should have filed seperate Witness Statements objecting to the Charging Order but I guess it is too late now.

 

Also technically it is not a "Defence", it should be a Witness Statement giving your reasons you object to the CO.

 

oops! What if I modify things accordingly now, without changing any of the content, for handing in to the Court Monday morning? So the Solicitors will get the "joint" "Defence" but the Court will get it in the correct format. Would that not be OK? I can't see the other Solicitors objecting as it's not like there would be any difference in the content.

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oops! What if I modify things accordingly now, without changing any of the content, for handing in to the Court Monday morning? So the Solicitors will get the "joint" "Defence" but the Court will get it in the correct format. Would that not be OK? I can't see the other Solicitors objecting as it's not like there would be any difference in the content.

 

 

The content should be tailored to each individual. Do not simply cut as paste exactly the same Witness Statement and put a different name at the top.

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It is very odd that the Court refer to an ICO weeks before the application is even made by the Claimant. However, I don't see this will have any affect onthe outcome as unfortunately the Court has within it's power to list both hearing for the same day.

 

Also, and sorry to sound negative, but I cannot see the Court varying the CCJ to £1 pcm month on a £15k debt and not allowing a Charing Order.

 

Thanks for your replies Ganymede. I agree, I'm not expecting them to accept it, but to set it to whatever they think after looking at our finances and we'll just have to try and stick to it, whatever it is. It's actually £1/m each we've offered, total £2/m. All our creditors (12) have agreed £1.50/m without any problems when they've seen our finances. It's part of a total about £20/m set aside for creditors. It is truthfully only what we can afford, we're not taking the p**s. But I gather that the Courts tend to just like to set it to more you can afford anyway, but if they were to do the right thing they should set it to what we can afford, i.e. what we've offered. But that's another issue I suppose, I know what you're saying and agree, it's unlikely they'll stop the CO with it being a token payment. But that's wrong, the law is quite clear from everything I've read that a CO should only be used if we fail on an instalment arrangement. I haven't seen anything in the legislation anywhere that allows the courts to grant a CO anyway even if you keep to instalments. Nowhere is this implied anywhere in the 1979 act. But my experience of DJs so far, personally and from reading on here, is they just do what they want anyway without regard to the law, because we're the little people with no money to fight back against the system.

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But that's wrong, the law is quite clear from everything I've read that a CO should only be used if we fail on an instalment arrangement. I haven't seen anything in the legislation anywhere that allows the courts to grant a CO anyway even if you keep to instalments. Nowhere is this implied anywhere in the 1979 act.

 

Agi, sorry to sound negative but I'm not sure your offer of £1 pcm each will be enough as there is caselaw around that instalments should not be set that small on such large debts where is would take longer than the Defendant's lifetime to repy the debt.

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