Can my county court claim be struck out?

[Pinkjellybaby]

have you served the ICO on the defender and all other interested parties eg the mortgage company and any one else such as joint owners, any one with restrictions or notices on the property?

[aidoo326]

have you served the ICO on the defender and all other interested parties eg the mortgage company and any one else such as joint owners, any one with restrictions or notices on the property?

 

Yes, I have. Fortunately the defendant was the only one that needed to be served with the ICO as there were no joint owners etc. At previous hearings the defendant has fought hard to get the charging order removed - again alleging non receipt of the ICO papers even though I had proof of postage and delivery to his registered office. I also had proof of having filed a certificate of service to the court in respect of the ICO. The bottom line is that my claim is for 10's of thousands and the defendant (a ltd company) does not have that kind of cash in the bank BUT does own a property with enough equity to pay the debt owed to me. It has all been quite tortuous really with the defendant making up one excuse after another for never having served and filed a defence.

[panther12]

But are you even late in filing & serving? I could be wrong but unless the order specifies an actual date to comply by, I thought the date commences from when the Order is given or made - as in this case 13/12/16. So 14 days to file & serve would be 27/12/16 and the defendant to reply with their defence by 18/1/17 (22 days later). The claimant at liberty to respond to defence by 1/2/16 (14 days later).

[aidoo326]

A FCO makes it easier / simpler to get paid from the proceeds of sale, and allows for an order for sale, which is why there is an incentive to have an ICO made into a FCO for some holders of a charging order.

 

However, "ensuring you get paid from the sale proceeds" doesn't require an FCO (otherwise anyone with an ICO would just make a quick transfer of their legal interest to evade it!).

 

CPR 73.

 

73.8, to be more precise.

 

 

The property shouldn't be sold while there is an ICO on it (without the court's permission) [73.8(2)], and if they did so, the sum becomes immediately payable to the holder of the ICO [73.8(3)], while if the holder of the ICO advises the conveyancing solicitors of it, they can take 'their share' direct from the proceeds of sale [73.8(1)] ......

So, the effect of the ICO is FUNCTIONALLY the same as an FCO - (just potentially less simple to enforce if the property is sold prior to the FCO).

 

Thanks for the CPR 73.8 reference - which makes me wonder the following: the property against which my charging order and unilateral notice is registered against is owned freehold by the defendant. There are several leasehold titles under the defendant's freehold title. I am aware that the owner of one of these leasehold titles is seeking a statutory lease extension - for which there is a premium payable to the defendant. Under CPR 73.8 and because my ICO remains on the defendant's freehold title, am I able to claim the premium that will be paid for this statutory lease extension as it is a dividend from the defendant's ownership of the freehold title? The amount of the premium would not clear up the total sum that the defendant owes me - but it would go part of the way ....

[aidoo326]

But are you even late in filing & serving? I could be wrong but unless the order specifies an actual date to comply by, I thought the date commences from when the Order is given or made - as in this case 13/12/16. So 14 days to file & serve would be 27/12/16 and the defendant to reply with their defence by 18/1/17 (22 days later). The claimant at liberty to respond to defence by 1/2/16 (14 days later).

 

I would sooo love this to be the case. Because if it were, I would definitely have the upper hand and the court would clearly see that the defendant is just game-playing. Does anyone else have any contributions to make on this point of view please?

[panther12]

I would give the court a quick ring to clarify but I'm pretty sure judgments and orders need to be sealed (stamped) by the court before they take effect and the date at the top right is the important date, so any action that needs to be done is from that date. For e.g, some orders may specify an actual date that you need to do something by, some may say within xx days of service (which would be from when you received it in the post). But as with this Order it states "within 14 days" so will be from when the Order was dated and sealed by the court on 13 dec. If the judge intended for it to be filed & served sooner I'm sure he would have stated an actual date that you must file & serve by within the order.

[Ganymede]

The ICO does not have the same effect as a FCO. The ICO can be registered, however the charging Order must be made final by a Judge to have the desired effect. The registration of an ICO only indicates that there is a FCO as it is not a requirement to also register the FCO when it has been granted. The defender still has the oppertunity to appeal against the ICO being made final at the hearing so ultimately can be refused if their argument is accepted by the Judge. This is rare however can still happen. The Judge can also impose sanctions on the FCO such as not allowing the creditor the power to force the sale of the property unless the defender defaults in payments or such like.

 

Wrong. The registering of an ICO (assuming it is not a restriction) has the same effect on selling the house as a FCO.

 

 

 

essentially, if the ICO has the same effect as the FCO why would anyone ever bother with having it made final? in your case ICO has been allowed to remain in place, however you are not able to proceed with it and have a hearing for it to be made final. therefore in my opinion, if the defender was to sell the house, you would be notified under the notice you have registered, but you do not have a final charging order to ensure you get paid from the sales proceeds.

 

Well your opinion is wrong, sorry. The ICO is registered for precisely that reason, to prevent a house from being sold before the FCO has been made.

[Ganymede]

Well now you have thoroughly depressed me. I thought that the function of the unilateral notice was to prevent the defendant disposing of / selling the property. Am I wrong about this?

 

 

A Unilateral Notice was a poor choice and it the weakest form of enforcement.

 

An Equitable charger (one homeowner and one debtor) is the best and will prevent the sale of the house.

[Ganymede]

I would give the court a quick ring to clarify but I'm pretty sure judgments and orders need to be sealed (stamped) by the court before they take effect and the date at the top right is the important date, so any action that needs to be done is from that date. For e.g, some orders may specify an actual date that you need to do something by, some may say within xx days of service (which would be from when you received it in the post). But as with this Order it states "within 14 days" so will be from when the Order was dated and sealed by the court on 13 dec. If the judge intended for it to be filed & served sooner I'm sure he would have stated an actual date that you must file & serve by within the order.

 

The date on the top right is the date the Order was typed up.

 

The date on the bottom left is the date the Order was made.

 

If the Order says to do something within 14 days then it is 14 days from the date of the Order, not the date the Court got round to typing it up.

[aidoo326]

Well now I am thoroughly confused. I have just telephoned the court - informed them of the two dates (hearing date of 7th December 2016 and order typed up date of 13th December 2016). Their question to me was 'so when did you receive the order?' my response was that it was typed on 13th December 2016 and I received it on 16th December 2016. Their reply was 'well, it is 14 days from the date that you received the order'.

[aidoo326]

If it helps, I have attached redacted copies of:

 

the interim charging order that I managed to obtain in 2016 (using the judgment in default)

the unilateral notice that I registered on the defendant's freehold title register (using the interim charging order)

Freehold title register with my UN1 registered against it.pdf

Interim charging order.pdf

[andydd]

Well now I am thoroughly confused. I have just telephoned the court - informed them of the two dates (hearing date of 7th December 2016 and order typed up date of 13th December 2016). Their question to me was 'so when did you receive the order?' my response was that it was typed on 13th December 2016 and I received it on 16th December 2016. Their reply was 'well, it is 14 days from the date that you received the order'.

 

The courts are normally in utter confusion, Im helping a friend, the court order is dated the 9th Jan, they received it on 12th and it states that fees, etc to be paid by 4pm on 6th

[Ganymede]

Well now I am thoroughly confused. I have just telephoned the court - informed them of the two dates (hearing date of 7th December 2016 and order typed up date of 13th December 2016). Their question to me was 'so when did you receive the order?' my response was that it was typed on 13th December 2016 and I received it on 16th December 2016. Their reply was 'well, it is 14 days from the date that you received the order'.

 

Bear in mind Court staff are not legally trained and should not be advising you.

 

Up to you what you do now.

[panther12]

Well now I am thoroughly confused. I have just telephoned the court - informed them of the two dates (hearing date of 7th December 2016 and order typed up date of 13th December 2016). Their question to me was 'so when did you receive the order?' my response was that it was typed on 13th December 2016 and I received it on 16th December 2016. Their reply was 'well, it is 14 days from the date that you received the order'.

Nice one aidoo, makes perfect sense and just what I thought. Unless the order specifies different, within 14 days refers to the date the Order is made (13/12/16). The other date is the date that the hearing took place and what the judge proposed at that hearing to be included in the order - and no doubt the reason why the court made that other order in response to the defendants application as they are confused themselves as to why that application was even made. It should be dealt with very swiftly at the start of the CMC hearing and an opportunity for you to capitalise on it by raising the defendants continued attempts to frustrate proceedings.

[BazzaS]

an opportunity for you to capitalise on it by raising the defendants continued attempts to frustrate proceedings.

 

I disagree.

 

By all means make a factual argument why the D's application for strike out should be dismissed.

 

But D is entitled to make applications, and then the judge will rule.

If the judge feels D's applications are without merit they'll dismiss them. If they feel they are frivolous or an abuse of process it'll tilt the judge's view of D and work against them if the judge does conclude the OP did miss the deadline from the order...

 

But if the OP cries "foul" and the judge doesn't agree : they risk irritating the judge if the judge concludes D's actions are just part and parcel of the adversarial court process.

 

If D's actions are that bad, the judge will reach that conclusion on their own. If "not that bad" don't risk irritating the judge by 'playing Perry Mason'.

OP: argue your points factually, leading the judge to the conclusion, but don't over egg the pudding.

[aidoo326]

Regarding the same claim, I received this redacted general form of judgment or order in the post today. I should explain that I have already served and filed a certificate of service in relation to the interim charging order. The order received today seems to require me to 'file a statement of the amount due under the judgment or order including any costs and interest'.

 

What form should this take? Is a letter together with a statement of truth sufficient or do I have to provide some kind of spreadsheet and breakdown?

General form of judgment or order dated 31-01-2017.pdf

[aidoo326]

.

 

If D's actions are that bad, the judge will reach that conclusion on their own. If "not that bad" don't risk irritating the judge by 'playing Perry Mason'.

OP: argue your points factually, leading the judge to the conclusion, but don't over egg the pudding.

 

Got it. Thanks.

[aidoo326]

Regarding the ICO, I received a general form of judgment or order in the post a couple of days ago. I should explain that I have already served and filed a certificate of service in relation to the ICO. The order received a couple of days ago seems to require me to 'file a statement of the amount due under the judgment or order including any costs and interest'.

 

What form does this normally take? Is a letter together with a statement of truth sufficient or do I have to provide some kind of spreadsheet and breakdown?

 

A redacted copy of the order is attached to post #41

[AndyOrch]

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part73#73.7

 

Service of interim order

CPR73.7

 

(1) Where the interim charging order has been made at the County Court Money Claims Centre and has not been transferred out of that Centre under rule 73.4(6) for a hearing, copies of the interim charging order, the application notice and any documents filed in support of it must be served by the judgment creditor on the persons listed in paragraph (7) within 21 days of the date of the interim charging order.

 

(2) Where paragraph (1) applies, the judgment creditor must file a certificate of service in relation to each person served together with a statement of the amount due under the judgement or order including any costs and interest, within 28 days of the date of the interim charging order.

 

(3) Any application for an extension of time for service or filing specified in paragraph (1) or (2)—

(a) must be made to the County Court Money Claims Centre; and

(b) will be dealt with without a hearing.

(4) Where paragraph (1) applies, if the judgment creditor—

(a) fails to comply with paragraph (1) or (2); and

(b) does not apply for an extension of time within the period specified by paragraph (1) or (2) as appropriate,

the matter must be referred to a judge to consider whether to dismiss the application and discharge the interim charging order.

 

(5) Where the interim charging order has been made at a court other than the County Court Money Claims Centre, or where the matter has been transferred out of that Centre under rule 73.4(6) for a hearing, 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 by the judgment creditor on the persons listed in paragraph (7).

 

(6) Where paragraph (5) applies, the judgment creditor must either—

(a) file a certificate of service in relation to each person served not less than 2 days before the hearing; or

(b) produce a certificate of service at the hearing.

 

(7) The persons to be served in accordance with paragraph (1) or (5) are—

(a) the judgment debtor;

(b) if the order relates to an interest in land, any co-owner;

© the judgment debtor’s spouse or civil partner (if known);

(d) such other creditors as are identified in the application notice or as the court directs;

(e) if the order relates to an interest under a trust, on such of the trustees as the court directs;

(f) if the interest charged is in securities other than securities held in court, then—

(i) in the case of stock for which the Bank of England keeps the register, the Bank of England;

(ii) in the case of government stock to which subparagraph (f)(i) does not apply, the keeper of the register;

(iii) in the case of stock of any body incorporated within England and Wales, that body;

(iv) in the case of stock of any body incorporated outside England and Wales or of any state or territory outside the United Kingdom, which is registered in a register kept in England and Wales, the keeper of that register;

(v) in the case of units of any unit trust in respect of which a register of the unit holders is kept in England and Wales, the keeper of that register; and

(g) if the interest charged is in funds in court, the Accountant General at the Court Funds Office.

[aidoo326]

The court acknowledges that I have already served and filed a certificate of service in respect of the ICO but they are now ordering me to file a statement of amount due including any costs and interest. I am not sure what form this should take and I would be grateful if anyone could advise on whether a letter citing the amount due together with a statement of truth is sufficient or whether it is a spreadsheet and breakdown that is required ...

[AndyOrch]

What information will I need to complete the application form Charging Order.pdf