What Form? What For? Where does it go?

[ploddertom]

Having been contacted several times of late asking for help there appears to be a lot of confusion over what Form to use, what application you make and where to send it once complete. Before going too much further can we establish that actions which originate in the High Court have all their applications made to the High Court. The confusion seems to arise for County Court Judgments (CCJ) that are either transferred up to the High Court for enforcement or enforced by the County Court Bailiff (CCB).

 

Stay of Execution

Form N244

If visited by a High Court Enforcement Officer (HCEO) you may be able to apply for a Stay of Execution against the Writ he has. You do need grounds to be able to do so and each case has to be treated on its own merits. It is no good just applying for a Stay just because someone says you should. If making this application it can be posted to the High Court in London or sent to a County Court that also acts as a District Registry of the High Court. If the application is urgent then it should be taken in person and ask for an urgent response. You must enclose the appropriate Court fee with the application unless you are entitled to have it waived in full or part - see below for further details.

 

The Stay may be granted on an interim basis pending a full Hearing at a later date.

 

Please note that if a CCJ is transferred up to the High Court it is for enforcement only and all other matters remain the jurisdiction of the County Court.

Set Aside

Form N244

If applying for Set Aside for a CCJ then this Form must be sent to the County Court where it was originally made or the last County Court listed if other representations have been made. You need to have a good reason to succeed with this, just because you did not receive the original documentation is not enough unless you can also prove the original would have failed. Again the Court fee must accompany the application unless you are entitled to have it waived in full or part - see below for further details.

 

Suspend the Warrant and/or

Variation Order

Form N245

If visited by the CCB you can apply on this Form to Suspend the Warrant of Control he has. In. with this or as a stand alone application you can also apply to pay your Judgment in affordable instalments - providing you can show why you cannot afford to pay it all at once & your I&E you submit shows no extravagant expenditure. You may apply to have you payment more than once if you have a change of circumstances but also note the Claimant may also apply to have the Judgment varied as well. The application needs to be sent to the Court where the CCJ was last dealt with. Again the Court fee must accompany the application unless you are entitled to have it waived in full or part - see below for further details.

Application for Fee Remission

Form EX160a & EX160c

You will need this if you feel you cannot afford to pay the Court Fees and may be granted Remission in full or part. You must supply the proof required with your application & if making more than 1 application then proof muct be sent with each.

[AndyOrch]

Excellent PT ....I will stick that for you in the main Bailiff Forum....here it is open for discussion

[brassnecked]

Great stuff PT, a Sticky it must be.

[Peterbard]

Yes excellent PT. These points needed clarification.

[brassnecked]

Does the debtor "Cannot afford the HCEO Fees" still hold as reason for Stay under the new Regs?

[wonkeydonkey]

Does the debtor "Cannot afford the HCEO Fees" still hold as reason for Stay under the new Regs?

 

If the debt is admitted but the debtor does not have the means to satisfy it, then it follows the 'fees' being added are also beyond the debtors reach.

 

This scenario can be addressed on submission of an N245 which if filed correctly should show the amount due to the claimant as ordered by the court and what proportion of the total debt being enforced are 'fees'.

 

So to answer your question, yes the fact the debtor cannot afford the extra burden of 'fees' can be given as additional reason to stay execution of the writ.

[AndyOrch]

Not sure that would be considered as a valid reason WD...not if the debt has been admitted ?

 

Regards

 

Andy

[ploddertom]

Does the debtor "Cannot afford the HCEO Fees" still hold as reason for Stay under the new Regs?

 

I would contend that still stands but would need to provide proof.

[ploddertom]

If the debt is admitted but the debtor does not have the means to satisfy it, then it follows the 'fees' being added are also beyond the debtors reach.

 

This scenario can be addressed on submission of an N245 which if filed correctly should show the amount due to the claimant as ordered by the court and what proportion of the total debt being enforced are 'fees'.

 

So to answer your question, yes the fact the debtor cannot afford the extra burden of 'fees' can be given as additional reason to stay execution of the writ.

 

Not sure that would be considered as a valid reason WD...not if the debt has been admitted ?

 

Regards

 

Andy

 

I would suggest these are 2 separate things. You could apply for a Stay on the grounds of being unable to afford the fees providing you can supply proof. This should go hand in hand with a Variation Order asking to pay in instalments after providing details of I&E that shows no extravagances such as full Sky package, smoking or foreign holidays to name a few.

 

Have heard recently of a person who got the hump because the Hearing went ahead in their absence - they had gone to Ibiza!

[ploddertom]

Another point noting is that of the forms used.

 

The title of a Form gives a good clue to its use. For instance Form N245 clearly states it is an "Application for suspension of a Warrant and/or Variation of an Order" - the Warrant is the Warrant of Control issued to the County Court Bailiff usually when chasing debts that are under £600 or governed by the CCA, & making an application to vary the terms of a previously made Order - you simply tick which part you want or both if need be - this Form is not used to apply for a Stay of Execution.

 

Applying the same thought for a Stay of Execution or Set Aside shows there is no relevant Form and this is why Form N244 is used as it is a general Application Notice for any matter not listed separately. This one of the reasons why the fee charged is a lot more as it can cover quite a broad spectrum and every application made is different.

[Bailiff Advice]

Does the debtor "Cannot afford the HCEO Fees" still hold as reason for Stay under the new Regs?

 

A little known fact is that hidden away in a recent amendment to legislation is the provision for a debtor to apply to court if he cannot afford the debt and fees demanded by the enforcement agent. Sadly I suspect that this amendment will come under heavy criticism from the enforcement sector when they have their meeting with the Ministry of Justice in 3 weeks time to discuss the outcome of the 'one year review'.

 

Unfortunately, not only do we have one particular highly unqualified 'McKenzie friend' charging debtors £135 for completing the court papers for 'set asides', but we now have another website offering an 'ebook' on the subject (for a fee of course) and another site charging debtors £199 for completing the paperwork.

 

Unfortunately a common problem that does not get told to debtors is the fact that with severe cutbacks to the courts, it is common to receive a hearing date of approx 2-3 months!!!

 

By way of example, on Wednesday I received a phone call from a Solicitor in Aylesbury regarding a 'set aside' that she had made on 19th August on behalf of a client who owned a quaint public house (and small hotel) in a nearby village. As a courtesy she had written to the enforcement company to advise them of the application and wrongly thought that all enforcement would cease (which of course it does not). The court had responded to her application and has listed the case for hearing on November 12th (a delay of nearly 3 months!!).

 

On Wednesday an HCEO visited the public house demanding payment of their writ of control for almost £16,000. I was given permission to talk with the enforcement agent and naturally he advised me that a 'pending' N244 application does not stop enforcement and that his client wanted his debt settled. Thankfully, he was very reasonable indeed and once made aware of the reason for the 'set aside', he agreed with my suggestion to enter into a Controlled Goods Agreement with the first payment being due in two weeks by 14th November (2 days after the court hearing).

[ploddertom]

 

Unfortunately a common problem that does not get told to debtors is the fact that with severe cutbacks to the courts, it is common to receive a hearing date of approx 2-3 months!!!

 

 

This is all too common a problem usually exacerbated by those involved not knowing the seriousness of the problems that can arise from letting matters progress at their own speed. Having been contacted on many occasions about this is the reason why I advocate delivering the Forms in person and explaining the seriousness of the situation. Many advocates rarely see these and are not sure what path to take - an even worse scenario crops up on Interpleader Hearings - and are therefore out of their comfort zone believing that once the application is made then that will halt enforcement - which of course it does not.

 

Next comes the problems arising because of lack of knowledge by the Court staff - some will never have seen these applications. Usually the larger inner city Courts are used to them and in this respect my local County Court/District Registry will hear very urgent applications immediately & produce the paperwork within 30 minutes - less serious cases are usually held within 48 hours. These are mostly Interim Hearings with a full Hearing heard at a later date where the original Order may be endorsed or even overturned if the facts are not quite what was originally represented.

 

Not fully understanding these matters can lead to serious implications for those involved as the sums involved can be quite substantial. Put together properly and submitted promptly to the correct Court is paramount and not something to be toyed with. Those sites which are offering to complete the paperwork will no doubt be offering some form of "Template" service and doing this will stand more chance of failure as they have not really taken on board the Judgment Debtors facts - one size certainly does not fit all.