CCJ granted because claimaint lied... Help please

[msorganised]

Looking for advice please,

 

 

a judgement in default has been granted and bailiffs instructed because the claimant has told the court the defendant didn't respond to the claim

- however the defendant filled in form N9A and took it, with a witness, to the claimant in person

who told them they would not accept an offer and would only take the full amount.

 

 

The defendant made a part payment on that same visit which has been deducted from the judgement amount,

yet the claimant has clearly pretended to the court this visit never happened.

 

It's my understanding that upon the claimant refusing the offer it should have been referred to the court for them to decide the amount to be paid and when

, but by lying to the court the claimant has denied them this opportunity and there have been three bailiff visits already which again are incurring charges.

 

I understand a form can be asked for to set aside the warrant

- is this the best course of action as I'm not sure it is grounds to have the whole CCJ set aside

(if they are indeed two seperate things)?

 

 

Any advice is appreciated as this seems grossly unfair,

the defendant does not have this sum all in one go and offered it across 10 monthly payments.

[honeybee13]

Hello there.

 

Is this to do with your previous thread please?

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?441574-claimform-for-being-a-guarantor-on-a-rent-agreement-help&p=4716180#post4716180

 

HB

[msorganised]

It's a different person, it's the same tenancy but the tenant themselves, not the guarantor

[AndyOrch]

The N9A is the notice of admittance and does not go to the court but the claimant...if you wish to challenge the warrant you can stay it...if you wish to challenge the CCJ you make application to set a side using the N244...but I dont see any chance of success considering the defendant only wants a payment arrangement....not defend the claim.

 

I would just submit an application using the N245 and vary the forthwith judgment to a monthly arrangement...you stay the Warrant also using a N245.

 

Andy

[msorganised]

Thanks Andy

 

The debt has increased by over £360 already due to these bailiff fees - had the defendant had the opportunity to put to the court the payment offer initially these would not have been incurred - is there anything they can do about that? It has been transferred to a high court enforcement officer from the County Court if that makes a difference.

[AndyOrch]

It will increase...why did the defendant not act on receipt of the Notice of Judgment......takes a while to transfer it to High Court for enforcement.

[msorganised]

It will increase...why did the defendant not act on receipt of the Notice of Judgment......takes a while to transfer it to High Court for enforcement.

 

They have used an enforcement company that specialises in fast tracking claims. The defendant unfortunately didn't understand the judgement and this is the first time since it was issued a month ago that we have spoken with them.

 

If it can be proven that the judgement should not have been issued in the form it was (I.e. Full settlement immediately) then can the fees still be charged?

[AndyOrch]

Well if friend did not understand the Notice of Judgment and you must pay £ xxxxxxx by xxxxxxx then sorting this will be even more complicated and difficult to understand and reverse.

[msorganised]

Also technically the amount has been paid to the claimant since the judgement although still in arrears (it's an ongoing tenancy) - can that be taken into account?

[msorganised]

Well if friend did not understand the Notice of Judgment and you must pay £ xxxxxxx by xxxxxxx then sorting this will be even more complicated and difficult to understand and reverse.

 

They do a very good impression of an ostrich unfortunately

[AndyOrch]

Just download the N245 (see our legal Library) and submit it to the court who issued the Judgment/Warrant...you can only vary the payment arrangement.

 

No chance of a set a side and I doubt any chance of getting the High Court fees reduced/reversed.

[msorganised]

Just download the N245 (see our legal Library) and submit it to the court who issued the Judgment/Warrant...you can only vary the payment arrangement.

 

No chance of a set a side and I doubt any chance of getting the High Court fees reduced/reversed.

 

Thankyou, will download the form. Could the defendant look to recover the fees by starting their own claim against the claimant considering the claimant abused the court process in the first place by lying if there is no other way around the fees?

[AndyOrch]

considering the claimant abused the court process in the first place by lying

 

Can you prove that if you was to issue a claim?

[msorganised]

Yes.

.. The defendant visited the claimant in person with a witness with their offer filled in on the court paperwork.

 

 

The claimant told them they would not accept any offer and without the defendant knowing filed for judgement in default

based on the defendant not responding.

 

 

However the judgement is less the same amount of money paid in person that day for which a receipt was given.

 

 

The claimant has denied the court the opportunity to have the court decide what amount should be paid

and when as they made an offer they were willing to stick considering they do not have the full amount or any assets to clear the debt

[msorganised]

I actually think after reflection they should make a formal complaint and see where that leads, giving them the opportunity to explain their actions and in the meantime get the form back to the court ASAP

[AndyOrch]

I dont think you are getting the point made in my initial post #4

 

When you have been served a court claim you can do 3 things....

 

1.Submit a defence defend all (N9b)...send to court

 

2.Submit a partial defence admit part (N9b)...send to court.You will automatically get a CCJ for the part admitted.

 

3.Submit an admittance (N9a)...send to ClaimantYou will automatically get a CCJ for the full amount.

 

Your friend admitted (3 above) and tried to negotiate a payment arrangement...the claimant is entitled to request judgment and accept or reject any offer of payment.

 

Regards

 

Andy

[msorganised]

Thankyou Andy, I do understand your point,

 

 

I just don't see how it is fair that as a result of their lying to the court that no offer was made

now High Court bailiffs have been instructed and need to be dealt with

when had the court seen the original offer made they would have realised the defendant offered as much

as they could afford as installments and would have kept to it

- therefore no need for bailiffs and an extra £360 of fees and rising.

 

Also the amount paid against the claim on the day of the visit was £350 but the judgement says they only paid £300

- their receipt and statement proves otherwise.

 

I can't get my head around how someone with no understanding of any of this is facing £900+ of court and bailiff costs for a £700 debt

- they were already struggling,

 

 

how this action helps I fail to see

[AndyOrch]

Thank you Andy, I do understand your point, I just don't see how it is fair that as a result of their lying to the court that no offer was made now High Court bailiffs have been instructed

 

Thats just the point msorganised ..they have not lied......they are fully entitled to execute the judgment after the date stated within the judgment...your friend received judgment and did nothing to arrange payment....hence the HCEO.

 

Your friend on the day he/she received the judgement should have made contact with the claimant to arrange a payment plan or submitted the N245 to court...he/she did nothing...and we are where we we are now.

[msorganised]

Andy, a post I have found on a previous thread words exactly what should have happened

- this is the point I am trying to make but I fear not making it very well.

 

 

If the Claimant decides to reject the offer they should complete the bottom part of form N205A

[Notice of issue (specified amount)] or form N225 [Request for Judgment and reply to Admission (specified amount)].

Enter the rate you want the debtor to pay, with your reasons for objecting to their proposals.

 

Then, send or take form N205A or N225, and a copy of the N9A to the court.

They will state the rate of payment they consider to be reasonable and include their reason for refusing the offer.

 

But unless they are confident they can convince the court that the defendant’s proposals are unreasonable, they should normally accept them.

If they decide to reject the defendant's proposals, the court will determine the rate of payment

 

The defendant made an offer to the claimant on the completed N9A within a week of receiving the particulars of claim.

The above should have happened,

instead the claimaint told the court this had never happened and went straight for judgement by default.

 

 

If that is not lying I do not know what is.

The defendants stupidity in burying their head afterwards is inexcusable

but they would not have been in such a severe position had the claimant followed the process set out by the court.

[AndyOrch]

Accepted....but the CCJ would have still gone a head because the N9a is Notice of Admittance...have you seen the Notice of Judgment ? Is it forthwith or payment arrangement made by the court?

[msorganised]

They don't deny the debt so expected a CCJ one way or another,

it was just the extra HCEO fees incurred that seemed grossly unfair,

but I am now under the impression they can't be charged anyway if an N245 to stop the bailiffs is put in with an N244 as long as the court accepts?

 

The judgement is forthwith

- I guess as if the original offer was never made

- however the defendant has no means to personally pay that amount at all.

 

 

The guarantor is also being pursued but is defending the claim so no judgement against him as yet.

 

Appreciate your advice andyorch, thankyou very much

[AndyOrch]

Mmmm you may struggle to reverse the charges..as stated the N245 should have been submitted the day they received the Notice of Judgment...the Execution fees happened because they did nothing.

 

You can offer your plea by way of the N244 and ask the court to show leniency on the basis that their offer was ignored and not submitted to the court...but get the N245 submitted now to deal with the initial judgment and stay the Warrant.

 

Regards

 

Andy

[msorganised]

Thanks, will make sure the forms get into the court by the defendant in person on Tuesday.

 

The High Court Bailiffs have visited three times,

however upon checking with the defendant they were never given/sent a notice of enforcement,

just three letters through the door saying they had visited,

but as far as I have read that they should have had the notice of enforcement given to them in person 7 days before any visits commenced,

is that correct?

[AndyOrch]

HCEO give no warnings if its been sent up to the High Court.