Varde/Brachers claimform - MBNA card

[Smoothound]

You're going to need a very good reason to set aside a CCJ, if one is granted in Default, especially as you've acknowledged the claim and submitted Applications around it. Saying you need extra time isn't a reason to set aside - you should have used the time you were given, or requested an extension. I didn't realise I could ask for another extension to be honest but it would change little as I would still be struggling with a defence in another 28 days I guess

 

Still, all is not lost, as even if a Default Judgment application is made, (which it shouldn't be, morally, as you've started settlement negotiations) it's going to take the Court about a week to process it. So, even if you send your Defence late, this evening or even tomorrow/Wednesday, it's still likely to be considered. That is a slight weight off! I'm going to email the solicitors and ask them to stay the proceedings while we talk anyway as I said above. I'm not convinced they will though although as you say they should do morally.

 

The point being you've had time, but it's not over yet, you're just running the risk of time working against you now, rather than having breathing space. Yeah I know but I've tried to get my head around everything but really it is all like another language to me, probably Chinese Your defence above helped but I can see it's not really fully correct for my situation but haven't really absorbed the info and knowledge to make it right as you can see from my comment to it

 

See red comments!

[Smoothound]

Received email today asking if I paid the full mortgage or a contribution and if a percentage what was it. Also the percentage of the rest of the items on my sheet, all of which are paid by me which I thought I'd made abundantly clear as it was a budget sheet for me not my partner? We don't split bills we pay the total amount of the bills we pay. Seems they are making this harder than it actually is? They also say the will not enter a judgement before end of 29/2/12 while we are in discussion! Not sure if that is good or bad to be honest?

[asokn]

Well, it's obviously good that they won't file for judgment immediately but I really think you need to give this case some real thought if you can't settle it. You do seem to be struggling with the first step, filing a defence, and this is totally understandable. I have never understood why people consider DIY surgery to be totally ridiculous but will have a crack at the law without question.

 

I'm not trying to put you off but I do think a reality check is needed as this site can only do so much and things will get harder rather than easier from here on in.

[car2403]

Well, it's obviously good that they won't file for judgment immediately but I really think you need to give this case some real thought if you can't settle it. You do seem to be struggling with the first step, filing a defence, and this is totally understandable. I have never understood why people consider DIY surgery to be totally ridiculous but will have a crack at the law without question.

 

I'm not trying to put you off but I do think a reality check is needed as this site can only do so much and things will get harder rather than easier from here on in.

 

CAG can only help you help yourself. It can't - and shouldn't - do any more than that. Unfortunately, as SH has said, this doesn't come as easy to some people as it does to others. After all, if it did, we'd all be lawyers! CAG is a useful resource, but you have to know and be able to make use of it, otherwise it's as much use as an air conditioning on a motorbike!

[Smoothound]

I'm going to disappear now.

 

Thanks to those who have tried to help a lost cause I just wish I'd realised earlier how difficult this would be for me or possibly it may have been made clearer how much I would need to learn and absorb to continue along this route.

[AndyOrch]

Hi SH

 

I personally would submit that defence if only to delay matters and stop Judgment by default.This will allow the mediation to progress which can progress up to trial date if allocated.Just a simple holding defence will suffice and one that you are confident in presenting.

 

They are playing for time hence the questioning of your I&E to get you up the the deadline.A simple response that the I&E is a true reflection of your financial position, not your partners and that you consider this questioning as a delaying tactic when it it quite abundant that the proposal and the I&E you have presented are a true and factual account of your financial position.Any attempt to frustrate mediation or jeopardize it will be considered when costs are considered.

 

Just my opinion.

 

Regards

 

Andy

[Smoothound]

Hi Andy,

 

I did consider just sending in a modified version of my original holding defence again but assumed that the court would just treat it as time wasting on my part!

[AndyOrch]

Not really the Court may never even get to see it if you conclude before trial, will give you that extra breathing space you require.

Just an option and may avoid the CCJ.

 

 

Andy

[Smoothound]

Not really the Court may never even get to see it if you conclude before trial, will give you that extra breathing space you require.

Just an option and may avoid the CCJ.

 

 

Andy

 

Can it just be emailed or does it have to be signed? I ask because it should've been in by today and if I post it won't be there till Wednesday if I do it?

 

Also if the court are unlikely to look at it until the trial it could consist of complete gobbledeegook assuming its purely to cover my obligation to file a defence and buy some time to reach an agreement with the claimant?

Edited February 27, 2012 by Smoothound

[AndyOrch]

Can it just be emailed or does it have to be signed? Is it not MCOL (Northampton)? do it online I ask because it should've been in by today and if I post it won't be there till Wednesday if I do it?

 

Also if the court are unlikely to look at it until the trial it could consist of complete gobbledeegook assuming its purely to cover my obligation to file a defence and buy some time to reach an agreement with the claimant?

But what if it did get to trial Im sure you would like it to consist of some substance also if it contained no merit they would simply then apply for Summary Judgment.

 

Andy

[Smoothound]

No it's not Northampton so it would need to be email or letter.

 

I guess realistically I'm still back at the point of putting something together that's usable so not really any different to further up the thread. Cars defence would need a fair bit of work to be usable and to use it as is would be no good if it does go to court

[AndyOrch]

Well I am not aware of the finer details of your case SH I was asked to advise on the proposed settlement course, which i have, I am simply offering an option as to delay judgment by default, what you enter as a defence must as I have stated should be something coherent with their claim.

 

Andy

[Smoothound]

Well I am not aware of the finer details of your case SH I was asked to advise on the proposed settlement course, which i have, I am simply offering an option as to delay judgment by default, what you enter as a defence must as I have stated should be something coherent with their claim.

 

Andy

 

Yeah thanks anyway Andy Realistically I'm up a gum tree now and can only wait and see what happens. I've made my offer if they chose to play games that's up to them but then it's something they are all well practiced at.

 

I don't really understand the effect of a CCJ on me so maybe I'm kniave but my credit file is rubbished now anyway so it's not going to affect me that way as far as I can see. They can't get blood out of a stone as I've said before and my offer is more than fair considering my disposable income.

[AndyOrch]

The effects of a CCJ can react in 3 ways obviously poor credit , employment (certain vocations) and converting the CCJ to a Charging Order (should you own property)

If the above are of no relevance then run with it, it will be on your file for 6 years.

 

Andy

[Smoothound]

We own a property but as prices continue to fall the equity is minimal to non existent, there are some arrears(being cleared slowly) and its jointly owned if that makes any difference?

[AndyOrch]

Property jointly owned and the debt being in just your name would be a Restriction as opposed to a Charging Order.

[Smoothound]

Property jointly owned and the debt being in just your name would be a Restriction as opposed to a Charging Order.

 

What is the basic difference between the 2 please Andy?

[AndyOrch]

April 2003 and afterwards

 

The Land Registration Act 2002 (LRA) and Land Registration Rules 2003 (LRR) introduced significant changes to

land registration procedures. Cautions were no longer to be used. Instead when a creditor obtained a charging

order against a debtor:

 

If the property was solely owned by the debtor, or all owners of the property were debtors, for example husband and wife owning the property jointly and being joint debtors, then an ‘agreed notice’ was to be filed at the Land Registry by the creditor. Effectively this was almost as good as having a mortgage.

 

The debtor could not realistically sell the property without repaying the debt to the creditor. However, if the property was jointly owned by the debtor with other none debtors, for example husband and wife owning the property and only one of them being the actual debtor, the creditor was not entitled to enter an agreed notice. Instead the creditor could only file a ‘restriction’ at the Land Registry in the following terms: “No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to [creditor...]

being the person with the benefit of an interim/final charging order on the beneficial interest of [nameof... debtor].”This restriction was, and remains, practically useless.

 

 

 

The effect of the Restriction The debtor and his joint owner’s freedom to sell the property is not affected by

such a restriction. They could sell the property as if there was no charging order against the debtor.All that was

required was that the new buyers or their solicitor write to the creditor informing them that they now owned

the property and then confirm to the Land Registry that they had given that notice.

 

Then the buyers could register the property with no further complications. The creditor, who is sitting back,waiting to get paid,instead just receives a letter confirming that a sale has already taken place, typically a week or two after the sale so there is little they can do to get the debt paid. In theory the creditor could apply for a freezing order against the debtor to try and obtain the cash from the sale proceeds. However, most creditors will never make such an application: The cost of applying for such a freezing order would run into thousands of pounds. The debtor might have spent the cash from the sale of the property before the freezing order was obtained so there is little, if anything, for the freezing order to bite on.

Edited February 27, 2012 by Andyorch

[Smoothound]

Thanks Andy. Just turned up a few threads on here about it. More reading for tomorrow I fear! Thanks for your help tonight

[asokn]

The effects of a CCJ can react in 3 ways obviously poor credit , employment (certain vocations) and converting the CCJ to a Charging Order (should you own property)

If the above are of no relevance then run with it, it will be on your file for 6 years.

 

Andy

 

Of course a charging order is not the only method of enforcement. The creditor could issue a warrant of execution (i.e. send bailiffs), seek an attachment of earnings order or third party debt order, file for bankruptcy etc.

[Smoothound]

Of course a charging order is not the only method of enforcement. The creditor could issue a warrant of execution (i.e. send bailiffs), seek an attachment of earnings order or third party debt order, file for bankruptcy etc.

 

As I said I've made a fair offer so if they want to push it that far would the court not think they were being wholly unreasonable? If I'd offered £1 a month for the rest of my days then I could understand it!

 

I just wish I could make enough sense of it all to make a defence that I could use to avoid a default judgement if that is what they are looking to do

[asokn]

No, enforcement is a matter for the creditor. Issuing a warrant doesn't even require a court hearing or any judicial intervention. Your debt is over the bankruptcy limit of £750 so that is also an option as I've said. You mustn't fall into the trap of thinking that putting an offer and paying an affordable monthly sum is all you need to do; it isn't.

[Smoothound]

No, enforcement is a matter for the creditor. Issuing a warrant doesn't even require a court hearing or any judicial intervention. Your debt is over the bankruptcy limit of £750 so that is also an option as I've said. You mustn't fall into the trap of thinking that putting an offer and paying an affordable monthly sum is all you need to do; it isn't.

 

Exactly which brings us back round full circle again to the point where I am supposed to become a lawyer and stand up in court to prove they are enforcing a dodgy debt or just give in and let the court and creditor stomp over me in their size 12 boots because I really don't have a clue

[Smoothound]

Got another email and they are now arguing that I am expecting the claimant to accept my offer while I appear to be paying the bulk of the bills while my partners income is free to spend as we like! This is not true as she works less hours than me and on a lower rate and has a fair amount of outgoings of her own including household bills like food, car insurance, house insurance, credit card etc. I think they are just being unreasonable now! Just wish I had the knowledge and skill to defend this

[AndyOrch]

Of course they are being unreasonable they want all the income, I would cease with any further offers, submit your holding defence to stop default judgment

( I assume all offers of mediation and responses are not " without prejudice " ? ) and proceed to trial.Introduce your attempts to mediate at Standard Disclosure

and then let the Court decide what is a fair monthly payment.Looks like you are going to get a CCJ either way SH they are frustrating your offers so in that instance get one with an installment order set by the Court.

 

Andy