Black Horse-Judgment in Default-You have not replied-Help!

[gforce2k]

Hi everyone,

 

My wife received a claim for an old (2006-2009) Black Horse Fixed-Sum Loan in mid June.

 

I used MCOL to file the AOS online for 28 days to submit a defence and then stupidly neglected to put a defence in in-time!

 

As a result she received a Judgment in Default a few days ago that states

 

"You have not replied to the claim form"

 

- not correct (AOS submitted in time).

 

Is there any way I can dispute the Judgment as the claim was responded to in time and AOS submitted in time?

Can I appeal or try putting in a defence with a letter disputing the Judgment or is this too risky/expensive?

 

If as I suspect I've blown my chance to defend my main concern is making a payment arrangement as not in a position to pay the whole amount

so I either need to delay the CCJ date (possibly by transferring top local court/asking for a hearing etc.??)

in order to try to get funds together before the 28 days after judgment or I need to change this to a monthly payment scheme somehow.

 

Could someone explain what the options (and deadlines/time limits after judgment) are for:

 

- disputing judgment in default/defending/appealing etc.

- delaying actions (even if will still end up with judgment against us it will allow time to clear the ccj before registered)

do I have to pay to make an application to the court to vary? or redetermine?

 

not sure what options are available and what is best.

 

- requesting a monthly payment arrangement I have a feeling the deadline is coming up in the next day or so,

 

can anyone help urgently?

 

thanks. gf2k

[steampowered]

Broadly speaking there are two options. First option is to apply to set aside the default judgment on form N244 attaching a witness statement. You would need to have genuine, substantial grounds for defending the claim for this to have any chance of success.

 

Second option is to submit a completed form N245 to ask for monthly payments on the CCJ.

[gforce2k]

Thanks SP, Have to make my mind up pretty quickly so appreciate the rapid response. Is there a minimum time limit after judgment to do either of these things before it is really too late? I have a feeling i may have to send these in today/tomorrow but could be wrong. N244-not sure if I have substantial grounds but if I do go this route am I correct it will cost £75 or more for the application and will lead to much greater costs if we lose again? N245-this may be the only real option. Am I correct this is £45 or more? Is there another way to do the same thing without the cost of application or is that no longer possible? (I remember reading somewhere there was a no cost option but can't recall the correct term: variation/redetermination?) thanks, gf2k

[steampowered]

There is no fixed minimum. You must act 'promptly' after becoming aware of the judgment to have a realistic hope of getting a set aside. What 'promptly' means depends on the circumstances and the attitude of the judge. Generally I would say aim for two weeks, tops.

 

On the N244, yes there will be fees unless you are exempt. I don't know enough about the case to comment on whether you have substantial grounds to defend it. If this is a small claim generally you should not be ordered to pay additional costs above the hearing fee if you lose ... but there is always a risk of being ordered to pay the other side's legal costs if the court thinks you acted unreasonably. This really links in to the point about substantial grounds for defending ... the risk of being ordered to pay costs is much greater if you are unable to come up with a proper Defence.

 

The N245 has a fee too I'm afraid, and will require an income and expenditure statement. Have a read of the leaflet on court fees available on the HMCS website to see if you are exempt. I don't think there is a fee-free way to do this, as any other form of varying the original order would need to be done on N244 which has a higher fee than N245.

 

The only fee-free way of doing things would be to ask the creditor to agree that it will not try to enforce the CCJ as long as you keep up monthly payments.

[gforce2k]

Thanks again SP,

So I have until Wednesday (2 weeks)

Defence-wise I think the default notice may be bad and the signed agreement they sent back was on two separate faxed sheets (one had 'Page 1 of 2' at the top and the other had 'Page 1 of 1' at the bottom) so arguably separate?

Going through everything again now to be sure if worthwhile.

 

May be a silly question but is it possible to do both? Make the N244 application to set aside/defend and also put in the N245 to redetermine/vary (what is the correct term?) or will that not be looked on kindly by the judge?

The only reason i ask is that we are away for 2-3 weeks soon so not here to handle any issues /paperwork (although will have internet and a laptop).

 

Thanks,

gf2k

[steampowered]

Yes, 2 weeks is a good timeline to aim for. This is not an exact timeline, the rules only say that you must act 'promptly' without defining what 'promptly' means.

 

The stuff you have at the moment sounds a bit weak to be honest, I don't think this is enough to justify a set aside. But do check the documents and let us know if you have any questions.

 

I guess there is no reason in principle why you can't issue both the N244 and the N245 at the same time ... but possibly better to wait and see how the N244 turns out, if that is the route you want to go down. If there is a set aside hearing it may well take more than 2-3 weeks to be heard ... perhaps try ringing your local court and asking how busy they are and how long this kind of thing is currently taking.

[gforce2k]

you're right SP, the default notices seem to give enough time (e.g. received 17th with pay-by date 7th of following month) and the 2 page contract was never going to be a strong defence.

 

So N245 to Northampton bulk Centre asap.

Too late to do that for today but can I submit it online or fax it and call in payment or do i have to post it with the £40 cheque?

 

Also a long shot occurred to me, do you think there is any way 'they' (Hillesden (claimant) or Aplins (docs & payments)) would consider a reduced lump sum of 30-50% if they are faced with possibly waiting for £20 or so per month?

 

cheers

 

gf2k

[gforce2k]

Hi SP, filling in the N245 now, couple questions.

 

Box 9 - My wife has 3 orders to pay but only room for 2, do I use the box below which is for: "Of the payments above, I am behind with payments to (please list)"

 

Box 10 - Same deal with Credit Debts more than box 10 allows.

 

Thanks,

gf2k

[gforce2k]

I think I've sorted Box 9&10.

 

Last question I hope:

Box 6 - "Other state benefit(s)" - does this include tax Credits?

 

Thanks

gf2k

[AndyOrch]

I think I've sorted Box 9&10.

 

Last question I hope:

Box 6 - "Other state benefit(s)" - does this include tax Credits?

 

Thanks

gf2k

 

 

No ...with regards to 9/10 just attach a separate sheet of paper.

 

Regards

 

Andy

[gforce2k]

Called Thanks Andy,

Bit of a curve ball.

 

Just about to send the N245 through and thought I would give it a go to try to come to an arrangement direct with the DCA, to avoid n245 fee/time etc.

 

They were quite happy to agree a minimal payment per month but said that they would still go after a charging order despite the arrangement, apparnelty too late to stop the process?? had already started, claim being transferred etc.

 

I decided to set up the verbal arrangement anyway and suggested making an initial payment by card (to make sure i start getting a good payment track record for any CO hearing)

 

She agreed the monthly payment and said she would send a letter confirming the arrangment with their bank details for a standing order.

 

Forgive me if i am wrong but my understanding is that if an N245 to vary is allowed early enough then it precludes their use of a Charging Order especially if payments can be shown to have been made regularly by the time the CO hearing has come up.

Would that be correct?

 

To cover my bases i called the court and found that they had no note of any charging order procees having been started, no transfer to local court nothing.

The person i spoke with seemed to think that if the N245 was received before any CO action by the Claimant then the N245 takes precedence . I paid the N245 fee and faxed it immediately so fingers crossed that's correct.

 

Any thoughts?

Waste of money or possibly prudent action?thanks,

 

Gf2k

[AndyOrch]

Afraid not GF2

 

Since last October the playing field was slanted even more.Claimants can now proceed to CO/Restrictions irrespective if you are up to date with payments or not....N245 or not.......Mercantile case was dead and buried.So auto security for the claimant and auto conversion from unsecured debt to secured on your property.

 

Regards

 

Andy

[gforce2k]

Apologies for not posting sooner,

I did eventually agree a verbal monthly arrangement with hillesden in July and then followed it up with an N245 to be sure.

They told me it wouldn't stop the process, that they would go after the CO anyway.

My wife subsequently received a notice that the matter was being transferred to our local court for enforcement.

Shortly after that we both received notice of an interim charging order and a final hearing.

The final hearing is this Monday 21st October (I know, not much time...)

 

I must admit I'm pretty much resigned to the fact that we will probably have the CO made permanent but I've just read that it's possible to request conditions.

 

Can anyone tell me how I should request that the CO have Conditions to stop any sale whilst the children are at school or whilst a payment arrangement is adhered to?

 

Also, although Hillesden state in the application that they only want the CO for Security and would be content to accept instalments, I need to ensure variance, to formalise the verbal payment arrangement.

 

I have the I&E form that I submitted with the N245 and statements showing payments made to Hillesden since the verbal agreement/N245 in July, should we also pen a witness statement?

 

This is my wife's debt but our house, can i therefore attend alongside her on Monday?

 

Lastly do i need to send any documents to Hillesden or the court before hand if I am going after variance and Conditions on the CO? If so do I have to send it recorded delivery tomorrow?

 

Hope you can help, thanks everyone.

gf2k

[Ganymede]

That's not a lot of time.

 

When were you served with the notice of hearing?

[gforce2k]

Hi Ganymede,

Yes, apologies, I realise very late to do anything, I wasn't going to ask for help until I read something about conditions.

My wife actually received the notice of hearing on 22nd August but up until now I thought our only option was to turn up, accept the CO and request that a variance be ordered based on the existing arrangement and their stated intention to accept instalments.

 

It's only after i read recently about Conditions we can add that i asked for more help.

I am painfully aware this is an 11th hour request but if I'm advised to post anything I can still scrape in a recorded delivery today for them to receive tomorrow morning.

 

Some advice seems to suggest putting together a witness statement arguing the CO, I fully expect the CO to be awarded whatever I do but is this also the correct method for trying to set conditions on the CO?

 

My only concern is ensuring no sale is forced as long as the current arrangement is kept to so if this can be done on the day without sending anything prior then great otherwise i need to rush something off today.

 

I understand that if we decided to argue the CO we would have had to post the court and Hillesden with details of the arguments before the hearing, but as we intend to accept the CO and only request certain conditions and variance can we request the conditions on the day and provide statements/documents supporting the request for variance without sending anything off before the hearing?

 

Thanks any help appreciated,

regards,

gf2k

[AndyOrch]

This is my wife's debt but our house, can i therefore attend alongside her on Monday? Yes its your property

 

Lastly do i need to send any documents to Hillesden or the court before hand if I am going after variance and Conditions on the CO? If so do I have to send it recorded delivery tomorrow? No just state your request along with your wife's at the hearing

 

Regards

 

Andy

[Ganymede]

Hi,

 

You're over thinking it.

 

There is no formal way to ask for "conditions." If the CO is awarded then you will need to ask the judge that a term is inserted into the Order that states no application for an an order for Sale to be made provided the Defendant maintains monthly payments of £XX.XX.

 

This is a joint debt so the CO can only be registered as a Restriction against your wife's beneficial interest in the property. As there are children living in the house a Court would not allow an OFS 99.99% of the time anyway so you are worrying for nothing.

[Ganymede]

Andy beat me to it.

[AndyOrch]

Yes but not answered as in depth as yours Gany:wink:

[gforce2k]

Thanks Andy and Gany,

Apologies for the last minute panic, thanks for clarifying.

 

So just a verbal request at the hearing for both CO conditions and variance, no need to take any paperwork?

 

Should I not take proof of payments and a copy of the N245/I&E for the variance?

 

Thanks,

gf2k

[AndyOrch]

"Should I not take proof of payments and a copy of the N245/I&E for the variance?"

 

Of course

[gforce2k]

ok at least i got that right.

 

perhaps another obvious one, should I take the desired Conditions typed out in a particular format to hand to the judge or perhaps on a form?

Either way how should I word the conditions request at the hearing, any legal terminology to include?

 

thanks again,

gf2k

[AndyOrch]

You could but I woudnt of thought you would need to to remember:-

 

No forced sale (which they cant anyway)

Children reside

You feel it prejudices your other creditors securing a lesser debt and gives them preference. (if applicable)

 

Andy

[gforce2k]

ok thanks again andy, it wasn't my need to remember, it was how I should to present to the judge, clear now, verbal sufficient.

thanks,

gf2k.

[gforce2k]

Big Problem

I've been looking through statements to find the payments to present to the court on monday but I have a big problem.

I found the original payment of £20 that i made to DCA at the end of july on the day I put the N245 and I&E form in but i can't find any others.

I've asked my wife to check her a/c as it's hers that it was supposed to be coming out of but she can't find any subsequent payments since July.

It seems Standing Order was never set up properly or at all.

 

Not sure what to do, we have made arrangements with 3 other DCAs through the court paying £20 per month via Standing order, all with no problem but for some reason this one didn't take and we didn't realise.

 

This not what i need when i'm supposed to argue on Monday for the 'arrangement' to be formalised when there was only one payment made!

 

All i can think of is paying the Aug/Sept and Oct payments i.e. £60 online today.

 

I'm hoping if we make the bring the arrangement up to date, show proof of the July and catchup payments and explain the mistake it will be enough to show the court it was an honest mistake.

I can also show evidence of that we are sticking with other arrangements too which should prove we will be good for this one when set up.

 

Is this the only option or does anyone have any ideas how best to play this to get the court to agree to an arrangement going forward?

 

Thanks.

gf2k