Urgent Help Needed re Setting Aside of Possession Order Please? Poss Non-Service?

[jqinfo]

Hi Folks

 

This is a very long and complicated case, however, I shall keep this to the technical argument I am trying to compile is regarding non-service and setting aside the default judgment. Any information would be much appreciated as we have applied for an adjournment pending FOS complaint into conduct and charges of the mortgage company, but the judge has not granted adjournment and struck out applicatiion to set aside due to not being served "promptly" but I have to submit to him a copy of the compalint plus a defence out of time for the accounting only? The judge has not considered all the facts, partly because we never get the opportunity to explain them and partly because the bank lie!

 

Please is anybody able to confirm whether it is automatically a mandatory set aside when service of court papers is at the last known address, knowingly aware that the customer is out of the jurisdiction and confined to a hospital bed? Thereby not physically in the jurisdiction and definitely not going to receive the papers to deal with them?

 

Secondly, having been provided with a representative to handle affairs whilst in and out of the country, in possession of their name, address and telephone number and they did not make contact with that representative, does that also make it against pre action protocol and CPR6 and thus non-service and should be set aside, regardless of time? Not to mention that despite being in hospital and having a representative, they did not get a reply and nobody turned up in court to defend, it could be easily concluded that they did not receive the papers?

 

Thirdly, if the above happens, is it then fair to use the set aside not applied for "promptly" rule and refuse set aside two years later following lots of problems with mortgage company when it quite clearly is not fair; and on top of that there were disputed arrears and a concession in place at the time that the possession order was applied for and none when the warrant of execution was applied for, they had been paid, albeit that this was in dispute and therefore, the set aside should be granted on the fact that the arrears were satisfied?

 

Fourthly, when the arrears of the original possession order are satisfied, why can they continue to resurrect it for any reason or amount, even disputed charges to go for eviction?

 

I have Fairways v Palmer, set aside due to defendant being out of jurisdiction that I would like to argue, does anybody have a later case that may stop me in my tracks?

 

Any help much appreciated, my brain is fried!

[jqinfo]

Perhaps I am making it too complicated? Please can anybody answer whether as per Fairways v Palmer, set aside granted as defendant out of jurisdiction, does this mean that under CPR 13.2 there is a right to an order for set aside, without touching 13.3 where discretionary powers and time constraints ensue?

 

Any comments gratefully received?

[Ell-enn]

Hi there, can you give a bit more info please.

 

Are you living in the property which is subject to the possession order?

Is the mortgage on that property in arrears?

Was the lender advised in writing of the dated you would not be in the property?

[jqinfo]

Thank you Ell-enn for your response, not wishing to confuse you any further, but......

 

The possession order was granted in 2010, on the back of not correctly administering a concession and in turn, not notifying me, as representative to the mortgage holder (my friend) who was stuck abroad, out of jurisdiction in a hospital bed. The bank had communicated with me on the account since the outset of the mortgage and since April 2009 had held written authority for me to act in the absence of my friend as she was going to be back and forth from abroad doing business. I discovered the order after it had been granted, with no notification of proceedings, or that they had deemed there own incompetences of not being able to apply the correct direct debits of the concession as arrears. I contacted the bank and in my naivety I believed the bank when they told me not to worry that if the arrears were paid it would all go away! I genuinely thought a satisfied order would not be resurrected.

 

In 2011, due to another muck up with the bank, who kept listing the unnecessary litigation fees and charges that should not have occurred as mortgage arrears, which I kept disputing, but could not get to the bottom of. Then whilst mid negotiation of payment of what I thought was the correct amount to ensure the account was up to date, plus the balance being taken as a formal complaint due to the precarious nature of its accrual, the bank applied for a warrant of execution of the possession order. My friend was back out of the country and I had let the property to tenants to maintain the mortgage and they were horrified when a bailiff turned up to serve. They applied to the court for a hearing to find out what was going on and I wrote to the court complaining that they had not adhered to the proper pre action protocol for service upon my friend, who they knew was out of the country and confined to hospital and that the house would be empty. I believe the correct procedure would have been to serve on me as the rep, or at least communicate to me papers were sent to the empty house, or they should have applied for service out of jurisdiction, albeit that hospital may not have been acceptable? That being said, have they communicated to me the problem prior to the court service, I would have ensure the account was up to date and no action would have been necessary.

 

At court, the bank had failed to notify their legal rep of our negotiations, thus I was admitted to the proceedings based on my makeshift POA, which as it was not a deed, was in fact a letter of authority, to explain what had occurred, which I had already outlined in my letter to the court, in which I requested that the order be set aside due to non service and flouting of pre action protocol. The court ignored the request to set aside and entered into discussions about the tenants. We had not asked permission of the bank, although they did not make a loss for that, as they do not charge extra for letting the premises, but charge £300 for asking, which I thought better spent on paying the mortgage, since my friend would return home and it would not be a long term thing. The bank requested the tenants pay directly to them, the judge asked if I objected, I said I did not; and it was decided the tenants were then authorised and that the payment was rent and not damages for occupation. I was so busy trying to get over my agreement with the bank about the account and the complaint and so relieved not to have lost the tenants that I did not realise the order had not been set aside, only postponed or stayed?

 

Anyway, the bank refused to address the complaint and made it almost impossible to service the account, refusing payments, cancelling DDs, refusing to reinstate DDs, applying for DDs when it had been cancelled in favour of card payments and so on. In the meantime, there had also been disputes of my authority. They had chosen not to communicate with me for the original possession, then communicated with me throughout the year, then for the next court application, didn't communicate it to me either. I kept enquiring about the complaint and adding to it, because after sorting out the account and complaint and on reassurances that all court action had ceased, they sent the bailiff in again! This lost us the tenants, they couldn't cope with the stress and uncertainty.

 

After a few months, I wrote to the bank requesting an update on the complaint, this was approx Oct/Nov 2011. They informed me that they had closed the complaint, because they had heard nothing from me, despite my numerous telephone calls and and email after the alleged closure date in April where I had added to my complaint, which had been acknowledged and passed on. They then began to pursue aggressively the disputed charges, demanding payment or else. I requested time to outline the details of why the complaint should not have been closed, with my relevant evidence, this was refused. I was told to pay up all monies outstanding (none of it CMI) or make a proposal by end Jan 2012. I made a proposal that the arrears be capitalised and spread over the remainder of the debt, but that they charges were still in dispute and we reserved the right to continue this dispute. I received no response to this requested proposal, save to say, this has been passed to our solicitors. I apologised for my obtuseness, but could they please explain what that meant? I was told they were going to enforce a warrant of eviction! As you can imagine, shock horror and much protesting, because by this time, I had moved into the property as the tenants had destroyed it and it needed renovating and I was paying the CMI. Thus the only sum outstanding was the disputed charges, subject to the complaint that they refused to address and closed down without telling me.

 

I then joined myself to the proceedings and requested a set aside. The bank protested saying my letter of authority was not valid POA technically to do such a thing and wrapped me up running around trying to get a proper POA, and the court allowed this. Rather than dictating that as the present occupier I was allowed to join in and request set aside. The court struck out my application based on this technicality of not having a valid POA. I had to get in an application in my friend's name to request a set aside. By this time I had compiled a huge spread sheet and totalled all monies paid, all monies due and all charges, fees etc. We had overpaid by nearly £5k, which in my opinion renders us entitled to a set aside on a satisfied order? A local advice agency, albeit had agreed to take instructions and serve documents etc and calculated the overpayment at a much higher amount, he still did not manage to communicate to the court the case in its entirety; and the case was struck out again, due to not being served promptly, without discussing jurisdiction or the overpaid account!

 

Present position, set aside struck out, not prompt enough, me removed from proceedings,now no standing at all & no POA and advice agency pulled out! We have requested an adjournment pending FOS complaint, bank refused to agree so applied to the court, court refused to issue without having the hearing and asking permission of the bank! With the sledgehammer to crack a walnut, the bank is now sending barristers to court at £2.5k a time. I am now left with a court order to file a copy of the complaint to the court and to file a defence as to the discrepancies of account?

 

I am know in possession of Fairways v Palmer, which clearly sets out that any defendant not "physically" in the jurisdiction when served is not valid service. Therefore, if I am correct, the original order should be set aside under 13.2 as of right, without reference to 13.3 with discretion and promptly; or am I muddling it all?

 

I am drowning!

[jqinfo]

[AndyOrch]

JQ do you mean http://www.bailii.org/ew/cases/EWHC/Ch/2006/96.html

 

It is Fairmays v Palmer, not Fairways.

 

Regards

 

Andy

[jqinfo]

JQ do you mean http://www.bailii.org/ew/cases/EWHC/Ch/2006/96.html

 

It is Fairmays v Palmer, not Fairways.

 

Regards

 

Andy

 

Yes Andy, but I have since discovered Kamali v City & Country Properties superseded it on the jurisdiction issue, which does highlight therein the service requirements under CPR 6, which require that a claimant with reason to believe a defendant is not residing at the property to seek to serve by alternative place, method or out of jurisdiction, none of which was done.

 

Also, my friend is in similar position as Deripaska in Chernery v Derispaska, in that her "usual" address was elsewhere, and she does not have "quality of use" of the property either, therefore the service is defective for these reasons, but it is 2 years down the line. If it were default CPR 12, then it would be a mandatory set aside, but I am not sure on the mandatory CPR section it should come under for a PO given summarily at first hearing, for non service ( and based on non disclosure of material facts to boot)?

 

Any ideas would be very much appreciated?

[AndyOrch]

This area of law is not really my forte JQ you should consult the expertise of a conveyancing practitioner.However you seem to be keyed up on CPR and my thoughts on your latest post are as follows:-

 

There are mandatory and discretionary grounds on which the court has the power to set aside a default judgment.

 

Under Rule 13.2 of the Civil Procedure Rules 1998, the court must set aside a default judgment that was wrongly entered before the defendant’s deadline for filing an acknowledgement of service or a defence expired. The court is also obliged to set aside a default judgment entered after the claim had been paid in full.

 

Under Rule 13.3(1), the court can use its discretion to set aside or vary a default judgment if the applicant can show that:

 

he (the defendant) has a real prospect of successfully defending the claim; or

it appears to the court that there is some other good reason why

 

the judgment should be set aside or varied; or

the defendant should be allowed to defend the claim.

 

Although in theory the applicant only has to satisfy one of the grounds set out above, there is more chance of the judge exercising his discretion if the applicant can show that he has a defence with a real prospect of success at trial. It is also important for the defendant to make his application for default judgment to be set aside as soon as he becomes aware of the judgment, as the promptness of his application will be taken into account by the court. Any application must be submitted with supporting evidence.

 

Possible outcomes

 

Following an application to set aside a default judgment, the court may:

 

set aside the default judgment;

refuse the application; or

make a conditional order.

With regard to a conditional order (when it appears to the court possible that a defence may succeed but improbable that it will do so, or if the application was made very late), the defendant will usually have to pay the amount of the claim (or as much as he can reasonably afford) into court within a set timescale, otherwise the default judgment will remain.

 

Costs

 

Once the court has determined the application, a costs order will be made and will vary depending on the outcome of the application. If the default judgment is set aside in accordance with Rule 13.2 (on a mandatory ground) then the fault will have been the claimant’s, who will consequently be ordered to pay the defendant’s costs.

 

If the application is granted on the ground that there was a good reason for the default, then the party that loses the subsequent case will usually pay the costs of the application (known as ‘costs in the case’).

 

If the application is granted on the ground that there is a defence with a real prospect of success at trial, the defendant normally has to pay the claimant’s costs. Similarly, the defendant will normally have to pay the claimant’s costs if a conditional order is made.

 

Regards

 

Andy

[jqinfo]

This area of law is not really my forte JQ you should consult the expertise of a conveyancing practitioner.However you seem to be keyed up on CPR and my thoughts on your latest post are as follows:-

 

There are mandatory and discretionary grounds on which the court has the power to set aside a default judgment.

 

Under Rule 13.2 of the Civil Procedure Rules 1998, the court must set aside a default judgment that was wrongly entered before the defendant’s deadline for filing an acknowledgement of service or a defence expired. The court is also obliged to set aside a default judgment entered after the claim had been paid in full.

 

Under Rule 13.3(1), the court can use its discretion to set aside or vary a default judgment if the applicant can show that:

 

he (the defendant) has a real prospect of successfully defending the claim; or

it appears to the court that there is some other good reason why

 

the judgment should be set aside or varied; or

the defendant should be allowed to defend the claim.

 

Although in theory the applicant only has to satisfy one of the grounds set out above, there is more chance of the judge exercising his discretion if the applicant can show that he has a defence with a real prospect of success at trial. It is also important for the defendant to make his application for default judgment to be set aside as soon as he becomes aware of the judgment, as the promptness of his application will be taken into account by the court. Any application must be submitted with supporting evidence.

 

Possible outcomes

 

Following an application to set aside a default judgment, the court may:

 

set aside the default judgment;

refuse the application; or

make a conditional order.

With regard to a conditional order (when it appears to the court possible that a defence may succeed but improbable that it will do so, or if the application was made very late), the defendant will usually have to pay the amount of the claim (or as much as he can reasonably afford) into court within a set timescale, otherwise the default judgment will remain.

 

Costs

 

Once the court has determined the application, a costs order will be made and will vary depending on the outcome of the application. If the default judgment is set aside in accordance with Rule 13.2 (on a mandatory ground) then the fault will have been the claimant’s, who will consequently be ordered to pay the defendant’s costs.

 

If the application is granted on the ground that there was a good reason for the default, then the party that loses the subsequent case will usually pay the costs of the application (known as ‘costs in the case’).

 

If the application is granted on the ground that there is a defence with a real prospect of success at trial, the defendant normally has to pay the claimant’s costs. Similarly, the defendant will normally have to pay the claimant’s costs if a conditional order is made.

 

Regards

 

Andy

 

Thank you Andy and yes, those were the lines I was going down, in particular 13.2 mandatory for defective service, but it sates it is for use in default judgment under CPR 12, which is not a mortgage possession order, which is not allowed as per CPR 55. Although I was hoping it would be the umbrella under which I could quote?

[jqinfo]

Also, just a thought, but if we had been notified prior to court, it would have been paid in full and thus not gone to court, is there any remedy for being deprived of this action?

[AndyOrch]

Postponement of possession

 

CPR55.18

 

(1) Where the defendant seeks postponement of possession on the ground of exceptional hardship under section 89 of the Housing Act 19806, the judge may direct a hearing of that issue.

(2) Where the judge directs a hearing under paragraph (1) –

(a) the hearing must be held before the date on which possession is to be given up; and

(b) the judge will direct how many days' notice the parties must be given of that hearing.

(3) Where the judge is satisfied, on a hearing directed under paragraph (1), that exceptional hardship would be caused by requiring possession to be given up by the date in the order of possession, he may vary the date on which possession must be given up.

 

Application to set aside or vary

 

CPR55.19

The court may

(a) on application by a party within 14 days of service of the order; or

(b) of its own initiative,

set aside or vary any order made under rule 55.17...which would be..:-

 

Possession order

55.17

Except where rules 55.16(1)(b) or © apply, the judge will make an order for possession without requiring the attendance of the parties.

[jqinfo]

Thank you, do you know if 55.19 is governed by promptness? As a first hearing is not a trial I believe 39.3 can be supplanted by 3.1(m), which is not governed by promptness, but 3.7 is and has been quantified elsewhere as 1 month, eeks! I need to get round the promptness as well as have a mandatory issue for it to succeed. There is so much cross referencing between to rules, my head has gone to mush!

[AndyOrch]

Well the norm is 14 days as stated above but I suspect its down to each individual case and detail.

 

Failure to attend the trial

 

CPR 39.3

 

(1) The court may proceed with a trial in the absence of a party but –

(a) if no party attends the trial, it may strike out(GL) the whole of the proceedings;

(b) if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and

© if a defendant does not attend, it may strike out his defence or counterclaim (or both).

(2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.

(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside(GL).

(4) An application under paragraph (2) or paragraph (3) must be supported by evidence.

(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant –

(a) acted promptly when he found out that the court had exercised its power to strike out(GL) or to enter judgment or make an order against him;

(b) had a good reason for not attending the trial; and

© has a reasonable prospect of success at the trial.

[jqinfo]

Yes, this is governed by promptness, which I need to avoid as the judge has already dismissed the idea as out of time without listening to the technicalities of the case and deliberate non-disclosure of the facts by omission on the part of the bank. I am so tired with it all! I feel like the ping pong ball in a game of table tennis!

[jqinfo]

Just out of curiosity, do you know what year the PCOL started processing claims online?

[AndyOrch]

Im not sure but I think its only a couple of years.I know CPR 55B governs the type of claims put through this service.

 

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part55b

 

Andy

[jqinfo]

I was wondering if this is why the possession order states "money claim adjourned generally" perhaps the process was different in 2009?

[jqinfo]

Thank you Andy, I have looked at that

 

Claims which may be started using Possession Claims Online

5.1

A claim may be started online if –

(1) it is brought under Section I of Part 55;

(2) it includes a possession claim for residential property by –

(a) a landlord against a tenant, solely on the ground of arrears of rent (but not a claim for forfeiture of a lease); or

(b) a mortgagee against a mortgagor, solely on the ground of default in the payment of sums due under a mortgage,

relating to land within the district of a specified court;

(3) it does not include a claim for any other remedy except for payment of arrears of rent or money due under a mortgage, interest and costs;

(3A) the claimant has an address for service in the United Kingdom;

(4) the defendant has an address for service in England and Wales; and

(5) the claimant is able to provide a postcode for the property.

 

If the defendant's address is not the one they would to think, or is out of jurisdiction, does it then revert to the CPR 6 to decide?

 

Also, if the dismissal of my application as "joined in occupier" is dismissed due to not having a valid POA and I do not need a POA for that particular application, is this an error on the part of the Court, a procedural error, for which I can seek it to rectify? ?

[AndyOrch]

Thank you Andy, I have looked at that

 

 

If the defendant's address is not the one they would to think, or is out of jurisdiction, does it then revert to the CPR 6 to decide?

 

Also, if the dismissal of my application as "joined in occupier" is dismissed due to not having a valid POA and I do not need a POA for that particular application, is this an error on the part of the Court, a procedural error, for which I can seek it to rectify? ?

 

As stated its really not my field JQ I would either consult an expert for a free half hour interview or speak to the National Debt line.Reading between the lines though and my understanding of the CPR the above must be worth investigating when so much is at stake.

 

Regards

 

Andy

[jqinfo]

Thank you for your input Andy, much appreciated.