Judgement letter today for £8,757.44

[James31]

Thanks for your help guys. I'll let you know how I get on.

[barnsleyboy]

OK just wanted to be clear as I got one of these with a CCJ in 2005/6 BC (Before CAG) and I'm building a case to have it set aside by giving the OC enough rope to hang themselves. I'll start a thread when I'm ready to proceed.

 

I agree no judge is going to make people homeless in this day and age so James can relax a bit.

 

If your CCJ is an English one, you may struggle to have it set-aside. If it is in default, CPR 13.2 requires the Court to consider whether you have acted promptly. In BCCI v Zafar and Regency Rolls v Carnell delays of 30 days have been fatal. If it is a judgment after a hearing, CPR 39.3 states that a judgment will not be set-aside unless it is made promptly.

 

The issue on charging orders is slightly different. A judge can make an order for sale for any county court judgment. He will, of course, have to weigh up the various factors and if u have children under 18 then it is unlikely. However, if you do not have any children then a judge is more likely to make a possession order.

 

Russ

[paulwlton]

I would just add although the CPR's state promptly this is assumed you are aware of all the facts, if for instance new evidance is obtained a number of years later then this would give cause to set judgment aside

[Gingerheid]

"On the application of the defendant and the court having considered the papers received from the parties, the Judgement made against the defendant in this court on the 13 August 2007 for payment of £8,387.44 and £370 for costs is hereby varied.

 

It is now ordered that the defendant pay the claimant the outstanding amount forthwith."

 

Is it worth checking if there was a mistake on the second order?

 

On the face of it they have accepted your application, but changing the order from payment in full forthwith to ... payment in full forthwith. Could they have typed the order up wrong?

[conar686]

Barnsley & Paul - Thanks both.

 

Both my CCJs (BC) contain charges & one even contains mis-sold PPI (all refunded) so I feel there is a case to have them set aside as the evidence presented at the time was false.

The courts documents as supplied by the claimant did not contain a full list of my creditors thereby denying the judge the opportunity to decide whether or not by giving them a charging order would disadvantage the others. (Charging Orders Act 1979)

 

 

Removal of CCJ's - Valid reasons to have your judgements set aside

 

I think 9 & 10 seem favourite.

 

Finally, Neither organisation has come up with an executable credit agreement not too relevant but goes to show how poorly their case was presented.

 

As I said when I can get all my ducks in row - I'll start the case & a thread.

[paulwlton]

If a money judgment contains unlawful charges a court will only setaside the amount of the charges and allow a defence to be submitted for this amount the balance will remain.

The other issue sounds promising

[conar686]

If a money judgement contains unlawful charges a court will only set aside the amount of the charges and allow a defence to be submitted for this amount the balance will remain.

The other issue sounds promising

 

On Balance, I think I can make a reasonable case (with the help of CAG) for a judge to consider the 'claimants original case' sufficiently flawed.

 

Also there is 'cause & effect' (not a legal term but best I can do to explain) i.e. No executable agreement, no default, no cause for court claim ergo no CCJ & charging order.

 

Bit like a police case getting chucked out because they had no probable cause.

 

Again, any reasonable judge (a big ask) should see that there is reasonable cause to have both CCJs set aside.

 

If the claimants then want to bring new cases, lets start from the beginning and with my new found knowledge & a little help from CAG we can tell both of the claimants to 'go forth & multiply'

 

Then this for me would be 'job done time for a cyber ale with the team of helpers'

[barnsleyboy]

I don't necessarily agree. I'm a solicitor who practices in this area so come across these arguments every day.

 

If a judgment is entered in default, the Court decides (by default) that the allegations of fact are proved. Any charging order is therefore based on a properly obtained judgment. Therefore, for a defendant to be successful, he/she must show (the burden is on you, not the claimant: ED&F Liquid Products Limited v Patel [2003]) that (assuming the papers were properly served) under CPR 13.3:

• you have a real prospect of successfully defending the claim; or
  
• there is some other good reason why the judgment should be set-aside.

In both cases, the Court will consider whether the application was made promptly.

 

If a judgment is entered after a hearing, the Court decides that the allegations of fact are proved. Therefore, for a defendant to be successful, he/she must show (the burden again being on you) that under CPR 39.3:

• you have a real prospect of successfully defending the claim;
  
• you acted promptly; and
  
• you have a good reason for not attending the trial/final hearing.

All three requirements must be satisfied.

 

It is not correct to say that promptly assumes you were aware of the facts. The key question is whether you acted promptly when finding out about the judgment. If not, it makes it nearly impossible to have the judgment set-aside under CPR 39.3 and makes it alot more difficult to have it set-aside under CPR 13.3.

 

If the Court sets-aside under CPR 13.3 it is likely to order you to pay the Defendant's wasted costs (i.e. any costs incurred since the date of the judgment to the date of your application and may include the defendant's costs of opposing your application).

 

Russ

[conar686]

BB

 

Good to know we have such expertise available.

 

I admit my ignorance led to not defending the cases in the first place so the courts should just dismiss out of hand. However is not a tenet of English law that all matters deserve a fair hearing.

 

I appreciate what your saying and your more than likely right and they will base their decision solely based on the Law. However if no one challenges 'bad laws' how do they get changed.

 

The bad I refer to here is that the court allows no latitude for the defendants ignorance as he should have employed a solicitor, no disrespect, but if I can't for a time meet my bills to my creditors where do I get funding to pay solicitors fees. Sounds like Catch 22 to me.

 

I cannot be expected to understand, fully, all my rights & freedoms, I am not an expert more a generalist and therefore am reliant on others to behave responsibly & fairly (naive I know).

 

I'm in a DMP with a private management company (as opposed to CCCS - public) and I believe they did not advise me as well as could be expected.

 

In addition should not the claimants solicitors, as a duty of care, ensured that their case was properly brought, without an executable agreement there is no contract for me to break then the case was flawed from the start.

 

I still think I can get them set aside for 9 & 10 ( I was the only on who received docs the OH received nowt) as above.

 

Win win for me is for the judge to order the CCJ Temp set aside & for the claimant to bring the case again and the charging order lifted as it breached the Charging order act and favours one of my creditors over the others

 

All I have to do is get the right judge on the right day with a solicitor who knows less than BB and I'm on a winner (anyone see flying pigs)

 

I may lose on the CCJ but I've a good chance on getting to order lifted for reasons given

[barnsleyboy]

The Court has to balance both yours and the creditor's interests. Is it right that a creditor, who obtains a judgment, should have the possibility that you come back six years later with new evidence? I've had this situation recently: the debtor said she did not sign the agreement; the handwriting expert said he couldn't say; judgment was entered against her; she later obtained additional evidence and witness statements.

 

The Court of Appeal dismissed her application for permission to appeal saying she should have taken these steps before judgment was entered after a trial: there were public policy reasons why the trial should be a final decision and this will only be reviewed in exceptional circumstances.

 

Unfortunately, the creditor's solicitors have no duty of care to you. They only have to take steps to ensure they don't mislead the court. Whether or not an unexecuted agreement is misleading is another matter....!

 

The problem you will have is getting good advice: I recently had a case involving the recovery of a vehicle and a recovery agent attempting to exercise a lien over it (right to retain it until charges were paid). His solicitors didn't even appreciate the claim was based on a tort, not a contract! You have to wonder sometimes how they can justify a bill!

 

Russ

[conar686]

OK Russ

 

There was a fairy called nuff and the called him 'fair enough' on the setting of the CCJ aside, it was always a big ask.

 

Could one of the regulatory bodies (I'm thinking TS or OFT) instruct the claimant to have the CCJ lifted if the agreement is proven unenforceable?:?

 

Also I'm unlikely to make the same mistakes as your lady cause I've got you lot (CAG) to shoot my more mad ideas down.

 

What of getting the charge lifted as it the claimant did not meet the requirements to ask for one and the judge so ordering caused one of mt creditors to be favoured over all the others?:?

 

I hope James doesn't mind us temp hi-jacking his thread though the info may be useful to him, so perhaps not.

[barnsleyboy]

I have not heard of the OFT or TS requiring a creditor to set-aside a judgment. I think it's very unlikely to do so: the Court is really the only body which can consider this.

 

Charging orders are an interesting way of enforcing a judgment. If you obtain a final charging order, it doesn't require the debtor to make any instalments. The creditor may claim interest (either under the terms and conditions of the agreement or the Judgments Act 1838) but if the agreement is regulated it can only claim interest on a judgment if its terms and conditions allow it.

 

Under CPR 73 PD 1.2 the creditor must include details of any other creditors of the judgment debtor, their names and (if known) their addresses.

 

'Creditor' is not defined so there are two possible situations:

• a creditor is anyone who claims the debtor owes him a debt which is unpaid; or
  
• a creditor is someone who has a judgment or undisputed debt (i.e. there is no defece to a claim).

I think the Court is likely to prefer the second explanation simply because it would be so difficult for a creditor to know exactly what debts the debtor has.

 

If you can show that you had, say, another judgment which would mean that the first and second judgments exceed the equity on your property then you may have a good argument to say the charging order should not be made final.

 

Russ

[conar686]

If you can show that you had, say, another judgement which would mean that the first and second judgements exceed the equity on your property then you may have a good argument to say the charging order should not be made final. Russ

 

Interesting stuff - I think it hard for the claimant not to have provided the courts with all the data they need in this respect.

 

The Solicitors had a copy, as did the court, of my financial statement of affairs containing a list of my creditors including payments being made and for some reason the courts decided to allow the charge anyway.

 

Not surprising as the judge probably has never heard of the Charges act nor his obligations under it and as you pointed out earlier the claimants Solicitors wouldn't tell them even if they knew.

 

Its all rather murky and if this was a bad American Cop series it'd be thrown out on a technicality as there was no probable cause for the case in the first place - 'Cogito sumere potum alterum'

[James31]

I called the courts yesterday to query the variation. They said it was correct, I was ordered to pay because my offer of £24 per month was rejected by Nationwide.

 

I said I thought that the judge was supposed to propose a fair amount for me to pay, they said it hasn't been before the judge yet. They advised me to write a letter to the court and ask for a re-determination, so I have done. Posted today.

 

Asked for re-determination, said I would like to pay £24 and that I could pay the whole amount (9k) in July next year.

 

Hmmm.

[paulwlton]

I don't necessarily agree. I'm a solicitor who practices in this area so come across these arguments every day.

 

If a judgment is entered in default, the Court decides (by default) that the allegations of fact are proved. Any charging order is therefore based on a properly obtained judgment. Therefore, for a defendant to be successful, he/she must show (the burden is on you, not the claimant: ED&F Liquid Products Limited v Patel [2003]) that (assuming the papers were properly served) under CPR 13.3:

• you have a real prospect of successfully defending the claim; or
  
• there is some other good reason why the judgment should be set-aside.

In both cases, the Court will consider whether the application was made promptly.

 

If a judgment is entered after a hearing, the Court decides that the allegations of fact are proved. Therefore, for a defendant to be successful, he/she must show (the burden again being on you) that under CPR 39.3:

• you have a real prospect of successfully defending the claim;
  
• you acted promptly; and
  
• you have a good reason for not attending the trial/final hearing.

All three requirements must be satisfied.

 

It is not correct to say that promptly assumes you were aware of the facts. The key question is whether you acted promptly when finding out about the judgment. If not, it makes it nearly impossible to have the judgment set-aside under CPR 39.3 and makes it alot more difficult to have it set-aside under CPR 13.3.

 

If the Court sets-aside under CPR 13.3 it is likely to order you to pay the Defendant's wasted costs (i.e. any costs incurred since the date of the judgment to the date of your application and may include the defendant's costs of opposing your application).

 

Russ

 

What i'm saying is if a judgment was obtained say 5 years ago which contained an element of unlawfull charges then an application could be made to set-aside part of the judgment has at the time of judgment you were not aware of all the facts. ie that the amount was incorrect.

 

I think judges will all have different views on "prompt"

 

Paul

[James31]

Just a quick thought.... I have already acknowledged the debt on the court forum when I replied to it recently.

 

If I were to subsquently CCA the creditor and discover that they do not hold a true copy of the original agreement, could I apply to have this set aside?

[conar686]

Just a quick thought.... I have already acknowledged the debt on the court forum when I replied to it recently.

 

If I were to subsquently CCA the creditor and discover that they do not hold a true copy of the original agreement, could I apply to have this set aside?

 

James

 

Russ sort of dealt with this earlier in your thread. Basically the law is the law, if you didn't defend at the time you can't come back l8r & claim it shouldn't have been brought anyway as they didn't have cause.

 

Thats why its important to deal with these things straight away.

[James31]

Just an update on this... Went to court in early December. Judge said that Nationwide couldn't have a charging order because they had failed to notify my other creditors of their intentions.

 

I have another date now in February. If Nationwide were to have notified my other creditors, would/should I have received a copy?