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    • Hi   I assume this mattress was the Tenants own property?   So after moving out the Tenants provided an attachment showing a stained mattress and wanting full deposit back and threatening to claim against you for this.   1. Tenants failed to notify you of this stained mattress issue until the end of tenancy after they had vacated the property.   2. You have no evidence that this was the actual mattress used in that property nor evidence to back up there claim the staining caused this mattress damage.  (i.e. one of them could have had an accident and wet the bed or done this when they moved from the property).     3. Ask them that you wish the mattress independently inspected. (which you are fully entitled to do and if it proves this claim is false it will be added to the deposit claim by you the landlord for damages as well as the Garden if you need to get landscapers in to carry out the work that should have been carried out by Tenants as per Tenacy Agreement and raised  by yourself (Landlord) on a few occasions which Tenants failed to rectify even at end of tenancy.   4. Ask them to provide you with the contact details of there Contents Insurance Company (tenants whether Private or Social Housing should always take out and have Contents Insurance but is up to that tenant) bet they don't provide it Big question is the Deposit protected in a Tenancy Deposit Scheme (TDS) and those Tenants that have left were given a copy of the Prescribed Terms for that TDS? (Bear in mind you may need to tell TDS that you are in dispute with the Tenant about damages i.e. mattress and Garden)    
    • plenty of time to research and calm down. nothing much to do until the end of june.    
    • well ...... 1st you need to go back to post 1 and carefully read ALL this thread from the start again and pay attention to the advice and the undertones it explains about 'debt'.   2nd ...the truth is you owe no-one ANYTHING, the OC wrote off and sold the debt, and got most of it back against tax and business insurance schemes ...throw the morality card out the window...the OC did by selling the debt on for <10p=£1. and the DCa want the full balance ...id so many fools stopped paying powerless DCA's tomorrow, the whole industry would collapse overnight.   3rd the only reason this is still around your neck is because you failed to follow given advice...had you ..it would now be statute barred.      ^^^ very important research the M+S credit card debacle using our enhanced google searchbox on this page   as for the PAPLOC reply,   D.. desipte a previous CCA requests, the claimant has yet to supply any/all of the required paperwork.   i: delete [CC is attached to this reply form]"   
    • Hi again   Yes, it's been a lovely day weather wise.   Guess you've better things to do with weather like today than help with this problem, so thanks very much for your input, it's very much appreciated.   Late this afternoon I did receive a reply from the tenants, and they are asking me to go 50/50 with getting the garden sorted, not only that, as they have moved away they are expecting me to get the quotes.   Regarding you view on this issue, its so easy not to see the whole picture and my thoughts that the staining damp may be of their own doing didn't occur to me as I was so locked into the historical leak. Taking a closer look at the room in question today, I'm convinced that they are trying it on with the stained mattress- they did mail through a picture and then a receipt for supposedly the mattress. My wife and I then took both the pic and receipt to the bedding store where purchase was made to ask if the two married up, the picture does not show any emblems/manufactures logo or such to prove that this is the case, so we are none the wiser- our thoughts being that the stained mattress is from elsewhere.   A few days back I spoke to our letting agent regarding all of this, as was quite correctly mentioned there are two parts to this equation, namely the mattress and then the property.   Our agents mentioned to me that as an inventory was not carried out initially with the let, (hindsight) the pictures that were used to advertise the property could not be used as evidence to present to the TDS to be compared to the pictures now as there is no proof that the advertising pictures were in fact how the property was when the let started. I mentioned that all digital pictures have a means of finding when that pic was taken- Geo tag/Metadata- agent was quite surprised by this. The agents thoughts then went for a hide in a vacuum-   This is going off at a tangent here-many moons ago my wife studied computer science at a local University, one of her classmates who she is still in touch with is now a practising Solicitor. My wife suggested that maybe I give her a call, a bit rude I guess, but I did  phone and with the pleasantries out the way  I asked for her opinion of the best way to get this sorted. Her remit isn't landlord type stuff, however she will speak to a colleague on Monday and come back to me.   The property is due to be relet on the 21st, we will ensure that the new tenants move in to a home that is immaculate and welcoming, trouble is its getting a tadge close to get the garden issues sorted in time.   I know that all this will get closure in the end, but at the moment I've had more fun with a toothpick-   Again, many thanks.
    • The collection is currently stored at curator James Blower's home, but he has now found a space situated in an old bank premises where he hopes to exhibit them from this autumn or early next year. View the full article
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It's impossible to say as I don't know what assets or savings etc you have, but to qualify for remission on such a low fee you'd have to fit into an extremely small category of people.

 

How sure are you that you qualified?

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It's impossible to say as I don't know what assets or savings etc you have, but to qualify for remission on such a low fee you'd have to fit into an extremely small category of people.

 

How sure are you that you qualified?

 

I have no savings or assets and I have a very low income which include tax credits… I took the papers to the counter at the court and they ok'd them...

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  • 2 weeks later...
Does anyone know whether it is necessary for a JC to notify all other creditors when making an application for a charging order?

 

Yes, technically they should notify all other known creditors.

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Yes, technically they should notify all other known creditors.

 

But they didn't… they told the court that they were not aware of any other creditors and if they had bothered to look it up, they would have seen that there are a few debts, one of which was much larger than theirs…(not including the £250k mortgage charge)...

 

 

I don't suppose there is much to be done about it now…

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Yes, technically they should notify all other known creditors.

 

Emphasis on the " should " but invariably ever do nor the courts compel....

 

CPR 73.5 (b)

 

73.5

 

(1) Copies of the interim charging order, the application notice and any documents filed in support of it must, not less than 21 days before the hearing, be served on the following persons –

 

(a) the judgment debtor;

(b) such other creditors as the court directs;

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part73

 

Regards

 

Andy

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Emphasis on the " should " but invariably ever do nor the courts compel....

 

CPR 73.5 (b)

 

73.5

 

(1) Copies of the interim charging order, the application notice and any documents filed in support of it must, not less than 21 days before the hearing, be served on the following persons –

 

(a) the judgment debtor;

(b) such other creditors as the court directs;

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part73

 

Regards

 

Andy

 

Thanks, Andy… so they can just get away with disadvantaging the other creditors, then? Doesn't seem very fair…

 

Andy… it states that the creditor must serve, etc., Is that not a statutory demand? There is nothing ambiguous about the word 'must'...

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Thats what the CPR advises......

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Seeing that the judge did not take your equitable counterclaim into account against the JC’s enforcement action, there has, therefore, been a serious procedural error in the case because the judge has not applied CPR r.73.8(2)© & (d) – (see below), and, in the circumstances of your case posted here, the judge has clearly disregarded the authority Geldof Metaalconstructie NV v Simon Carves Ltd [2010] EWCA Civ 677, which confirms that it is manifestly unjust for a Court to allow a Claimant’s enforcement action without taking the Defendant’s cross-claim (counterclaim) into account and off-setting the same against the Claimant’s enforcement action. Such claim and cross-claim must be so closely connected for it to be manifestly unjust to allow the claim but not take the cross-claim into account.

 

 

If this matter was decided in your local County Court, then, depending upon the amount of monies involved for both actions, it is quite possible that the DJ did not have authority to deal with it and therefore he should have adjourned the charging order hearing and transferred the entire matter to the High Court – Chancery Division or Queen’s Bench Division, where either of those Courts would have served directions on you and the Claimant for the purpose of the matter to go to trial.

 

 

Based on what you have posted here, you have clear grounds to apply back to the same Court to have the charging order set aside and for the matter to be transferred and formally adjudicated on by a High Court judge (Chancery or Queen’s) after a trial of the matters/issues in dispute have been heard and all evidence thereon put before the Court.

 

 

Rule 73.8 Further consideration of the application

73.8

(1) If any person objects to the court making a final charging order, he must—

(a) file; and

(b) serve on the applicant;

written evidence stating the grounds of his objections, not less than 7 days before the hearing.

(2) At the hearing the court may—

(a) make a final charging order confirming that the charge imposed by the interim charging order shall continue, with or without modification;

(b) discharge the interim charging order and dismiss the application;

© decide any issues in dispute between the parties, or between any of the parties and any other person who objects to the court making a final charging order; or

(d) direct a trial of any such issues, and if necessary give directions.

(3) If the court makes a final charging order which charges securities other than securities held in court, the order will include a stop notice unless the court otherwise orders.

(Section III of this Part contains provisions about stop notices.)

(4) Any order made at the hearing must be served on all the persons on whom the interim charging order was required to be served.

 

 

 

CPR r.73.5(1)

 

"Such other creditors as the court directs"

73.5.1 The court has a discretion whether or not to make a charging order. It may not be equitable to do so where there are other creditors, the judgment debtor is insolvent, and there is or is about to be an arrangement to distribute available assets among the creditors pro rata (D Wilson (Birmingham) Ltd v Metropolitan Property Developments Ltd [1975] 2 All E.R. 814; Rainbow v Moorgate Properties Ltd [1975] 2 All E.R. 821). Accordingly, in the application, the judgment creditor is required to state other creditors of the judgment debtor of which they are aware and the court has power to direct service on them. A debtor's spouse would be regarded as a creditor where an application for ancillary relief has been registered against the property (see generally, Harman v Glencross [1986] 1 All E.R. 545).

 

 

Therefore, your other creditors should have been served with the charging order application.

 

 

ibberty bibberty

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Thats what the CPR advises......

 

CPR 'advice'…. so they can ignore it if they like?

 

Seeing that the judge did not take ...............

 

 

Great advice IB… thanks!! Just trying to find out if they have actually broken any rules by not notifying all the other creditors…and if so, what remedies are available…They seem to get away with all sorts so I won't hold my breath… It seems so unfair that they can disregard all kinds of things and the court turns a blind eye, yet if I were to make a mistake they would come down on me like a ton of bricks!!

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CPR 'advice'…. so they can ignore it if they like?

 

The Civil Procdure Rules provide a new code of civil procedure for the civil courts.The CPR were designed to improve access to justice by making legal proceedings cheaper, quicker, and easier to understand for non-lawyers. Unlike the previous rules of civil procedure, the CPR commence with a statement of their “Overriding Objective”, both to aid in the application of specific provisions and to guide behaviour where no specific rule applies.

 

So no they cant ignore and I would refer you to CPR 1.1 in particular 1.1 2 (a)

 

1.1

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

© dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and

(f) enforcing compliance with rules, practice directions and orders.

 

Its how you interpret and manipulate to your own advantage.

 

Andy

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Andy… it states that the creditor must serve, etc., Is that not a statutory demand? There is nothing ambiguous about the word 'must'...

 

Do you know for sure that no other creditors were served?

 

Why have you not started your own Court claim like the Judge advised you to do rather than mess around with the refused counter claim?

 

Sorry if I've you've said, but what is your counter claim for again?

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The Civil Procdure Rules provide a new code of civil procedure for the civil courts.The CPR were designed to improve access to justice by making legal proceedings cheaper, quicker, and easier to understand for non-lawyers. Unlike the previous rules of civil procedure, the CPR commence with a statement of their “Overriding Objective”, both to aid in the application of specific provisions and to guide behaviour where no specific rule applies.

 

So no they cant ignore and I would refer you to CPR 1.1 in particular 1.1 2 (a)

 

1.1

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

© dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and

(f) enforcing compliance with rules, practice directions and orders.

 

Its how you interpret and manipulate to your own advantage.

 

Andy

 

 

Many thanks, Andy… I still find the rules very complicated and I consider myself to be of average intelligence… but I am sure there are many, many people who are completely baffled… if it was so easy, the lawyers would be out of a job.

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But the JC solicitors stated that they were 'not aware of any other creditors'…. What measures are they required to take to find out if there are any other debts? I don't think they could have looked very far as we were involved with a DCA in 2008 when my husband was suddenly made redundant and there are quite a few debts which I am still paying off. They would only have had to run a credit check to find out about these...

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So no they cant ignore and I would refer you to CPR 1.1 in particular 1.1 2 (a)

 

1.1

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

© dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and

(f) enforcing compliance with rules, practice directions and orders.

 

Its how you interpret and manipulate to your own advantage.

 

Andy

 

Hmmm… not really an equal footing when one side is represented and the other side is a very uninformed LIP… But I appreciate what you are saying...

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  • 1 month later...
Thedabara, you could complain to the Financial Ombudsman about your insurance company refusing to pay for your counterclaim. You would first need to establish if your counterclaim is within the time limit. It is always best to be represented as it is a professional risk for a judge to find in favour of a LIP when the other side is represented. (S/he could get overturned when the represented side appeal, which is humiliating for a judge and no help to his/her CV).

 

 

Just an update; The FOS is now involved with regard to my legal expenses insurer failing to allow my claim… I spoke to someone on the phone yesterday and although I was having problems hearing because the tinnitus is is bad, it seems quite positive in that she seemed to agree that the creditor has acted unlawfully against me… I won't be holding my breath, though, as i am sure these things take time… meanwhile, the creditor has recently threatened a forced sale… this is the 2nd time in 6 months that his solicitor has made threats… perhaps they are worried that I will try to counterclaim again, as the last time I was denied a defence and counterclaim by the court's failure to issue same in the mistaken belief that I had failed to pay the court fee. I wrote to the court asking for some kind of explanation but they haven't bothered to reply.

I have problems keeping up the pace… there are sometimes weeks and weeks where I just can't face doing anything because of the anxiety… then I get some strength to carry on after a bit… I need to keep up the momentum, I suppose…

 

I know that the creditor is justified in trying to get his money back because i withdrew from the trial, so therefore I owe his legal costs… but I don't think the court was right in making the order when I was denied the right to a fair hearing due to the court's failure to provide a working audio loop, and the judge's failure to adjourn until I had been fitted with the hearing aids I was waiting for...

 

According to dictionary.com, bias is defined as follows:

 

1. a particular tendency, trend, inclination, feeling, or opinion, especially one that is preconceived or unreasoned: illegal bias against older job applicants; the magazine’s bias toward art rather than photography; our strong bias in favor of the idea.

2. unreasonably hostile feelings or opinions about a social group; prejudice: accusations of racial bias.

 

In order to be biased, the judge would need to have some preconceived notion about who is right before listening to the case. Making a decision you disagree with is not bias. The judge was faced with the other side saying they sent it, you saying you didn't receive it, and decided to go with the other side.

 

I still think there was bias… the judge favoured the other side by insisting on going ahead with the trial knowing I was unable to fully participate, being a deaf LIP without a hearing loop...

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  • 2 weeks later...

Hmmm… Several emails to the court to which I have had no replies, aside from an automatic acknowledgement…(How rude!!)

 

I think maybe I should fill in the EX343 form and make a formal complaint.

 

If I can prove that there was an administrative error by the Court where they failed to issue my defence and counterclaim prior to the hearing for the final CO, then hopefully I can apply to have the CO set aside

 

I am entitled to defend myself against the creditor's application, otherwise, it's not a fair hearing.

 

Does anyone think this might be the best way forward, please? In a kind of Limbo here with the creditor slowly circling, waiting for a sign of weakness so that he can take my home away… :(

 

TB

 

I very much doubt that the solicitors firm will have the facility to run a credit check on you.

 

Don't they just check on Experian or something? Or is it up to the defendant to ensure that they have all details of other creditors?

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At what courts are Charging Orders made?

 

It depends on the original value of the judgment debt; if under £5,000, it will be made in the County Court. For all judgments with a value that exceeds £5,000, the Charging Order will be made in the High Court.

 

Found this on Burlington's website… does anyone know if it's true, please? If so, my hearing should have been in the High Court...

 

I very much doubt that the solicitors firm will have the facility to run a credit check on you.

 

 

Also found this on Burlington's which very much seems to imply that it is down to the creditor to inform 'known' creditors… but of course, they will just say there are no known creditors… In our case, there is about £60k worth of debt, not including the ™250k mortgage, so a bit naughty for them to just charge ahead with the CO.

 

I also found other little bits on this site; The creditor's statement of truth should be signed… (It wasn't). I brought this to the court's attention in my defence argument, which of course didn't see the light of day, because the court didn't issue it...

 

Also, the court only allowed for a 10 minute hearing to 'rubber stamp' the CO, which is hardly fair, seeing as I could possibly lose my home..

 

Grrr!!!

 

If there's anyone out there, please let me know what you think… good or bad... it's feeling a little bit lonely talking to myself...

 

Also found this on Burlington's which very much seems to imply that it is down to the creditor to inform 'known' creditors… but of course, they will just say there are no known creditors… In our case, there is about £60k worth of debt, not including the ™250k mortgage, so a bit naughty for them to just charge ahead with the CO.

 

I also found other little bits on this site; The creditor's statement of truth should be signed… (It wasn't). I brought this to the court's attention in my defence argument, which of course didn't see the light of day, because the court didn't issue it...

 

Also, the court only allowed for a 10 minute hearing to 'rubber stamp' the CO, which is hardly fair, seeing as I could possibly lose my home..

 

Grrr!!!

 

If there's anyone out there, please let me know what you think… good or bad... it's feeling a little bit lonely talking to myself...

 

 

 

 

What is the process for obtaining a Charging Order?

The application is a two-stage process;

 

Obtaining an Interim Charging Order (formerly known as an ‘order nisi’) (CPR 73.4) – this is obtained without notice to the defendant and for property, the creditor can use land registry to check ownership of land. ‘Office copy entries’ should be attached to the application as evidence.

At the interim stage, a judge will deal with the application without a hearing. The judge could impose a charge over the defendant’s interest in the asset and for a hearing for a final order; or he could refuse to make the interim order, using his discretion, as the outstanding amount is too small to justify the defendant losing his home if the Final Charging Order becomes an Order for Sale. In their application, the creditor should include evidence, in paragraph 7, that the defendant has a “won’t pay” attitude rather than a “can’t wait”. Also, include an abortive enforcement methods tried and include the abortive report. It is for the creditor to put a case together to prove the defendant has assets to pay but is unwilling to do so.

 

An interim order should be registered to stop the asset being sold. It will depend on whether the land is registered or unregistered as to the steps that should be taken. See chart on page 135.

 

Interim charging orders must be served not less than 21 days before the final order hearing; it should be served with the application notice and any other documents which support it; served on the defendant, any creditors (directed by courts) and, if the interest relates to a trust then the trustees. The creditor must include any other known creditors in their application.

If an Interim Charging Order is made prior to agreeing a payment arrangement, the court usually confirms the Charging Order but it is unlikely to do so if the payment arrangement is made after the interim order has been made. The court will use their discretion to make or refuse a Charging Order.

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  • 2 weeks later...

UPDATE:

 

Finally, FINALLY a letter from the Court….

 

An admission of maladministration along with an apology for their mistake in not issuing my defence/counterclaim in the mistaken belief that I had not paid the court fee.

 

A long way to go, but light at the end of the tunnel...

 

Hmmm… not just me, then… this has been going on for a long time, too...BBC Home

 

 

County courts system 'in chaos'

 

Judge Paul Collins

Judge Collins blames mistakes on the lack of resources

The civil justice system is in crisis, according to one of Britain's top county court judges.

Judge Paul Collins, London's most senior county court judge, has told Radio 4's Law in Action programme that serious errors are commonplace.

 

He said low pay and staff shortages meant "we run the risk of bringing about a real collapse in the service".

 

The Courts Service denied the system was in such a state but admitted staff turnover was high in London.

 

 

http://news.bbc.co.uk/1/hi/uk/6353597.stm

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hi

that article is 9 years old, but as say #91, they still have problems?

 

Yes… all this time and they still haven't sorted it out… Court mistakes can lead to people losing their homes through no fault of their own...

 

At least in my case they have managed to find the missing documents… but it has taken ages for them to admit their mistake.... it's been a year since the hearing!:mad2:

 

Presumably, I don't need to apply for an extension of time if it's the court's fault for losing the documents and failing to issue them?

 

Just the application to set aside, then, I guess...

 

Thank you for the link, Theda. I've left a quote of part of the article and put in your link, as per site rules.

 

HB

 

 

ok… thanks and sorry for the pasting!!

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