Charging order - Now trying for orders of sale - old CARCRAFT DEBT - HELP

[sequenci]

Hello there, thanks for the PM.

 

As mentioned already, and if there are children living in the property (which *has* to be jointly owned with a partner), you have a great deal of protection under the Act that Eggboxy mentions. The sections that are important here are sections 14 and 15. Take a look:

 

http://www.legislation.gov.uk/ukpga/1996/47/part/I/crossheading/powers-of-court

 

In short, If there are children living in a 'family' home then their interests should outweigh the charge holder's. This is a key argument to raise within the proceedings AND again at the hearing. Also argue the time delay in them getting their charge and making this application, although the latter argument isn't anywhere near as solid it's still another stoke to throw in the fire as it were.

[Hidden-man]

The letter and evidence has been posted and checked royal mail track and trace and they have been delivered and electronic signature is online. I've the email as well reiterating my original offer but no reply.

offer in email was £50 per month, offer in court papers is as per original agreement og £62 per month.

Will attend hearing and argue single debt, joint property and wife not liable.Also kids living in home.

Scared as hell though.

[Hidden-man]

Latest developments

- My wife returned to work, however was sent home after half an hour and due to the lack of support has had to hand in her notice.

A long story and may result in her making a claim for constructive dismissal.

 

the following day received a response to my email rejecting my offer of £50 pcm but willing to accept £65 pcm and would cancel the proceedings.

 

Because of the situation with my wife and our household income now being even less,

I had to refuse and make a revised offer of £25 pcm.

 

I outlined the change in circumstances and stated if / when my wife sources a new job I would increase payments in line with their proposal.

Offered to make 1st payment this month and upon receipt of bank details would set up a standing order.

 

They have replied rejecting this and saying they are proceeding with the hearing.

I've sent an email back saying I'm disappointed, we will be defending and while their offers have been made without prejudice

my emails have not made this condition so will use the email as evidence to show that I notified them of change in circumstances, made a revised offer.

 

Also told them wifes sick note would be produced as evidence of her ill heatlh (doctor has signed her unfit for another month).

 

The heariing is next week can anybody offer anymore adivce before we attend.

[citizenB]

Oh dear, sorry to hear you have more problems to deal with.

 

The court will see that you have made every attempt to deal with the situation and hopefully will take this into consideration.

 

I am sure others will be popping in with advice for you.

[Hidden-man]

It never rains but pours as the saying goes.

 

I've just received another email from which just says statement of costs and draft order attached.

 

Looked at the attachement which just appears to my untrained eye as a breakdown of the costs (summary assessment) to be sbumitted now totalling £1200.

Not sure if they should have sent another document or whether it is one and the same.

I'm going to reply requesting that they reconsider my offer but not very optimistic.

 

Hearing is on Tuesday so not much time to get it halted now.

[caro]

Prepare an uptodate budget sheet taking into account the loss of your wifes income and take this to court with you. Also the correspondence showing that you've tried to settle but your offers have been rejected. At the very least when the matter of costs is raised in court this will prove that you've made every effort to settle but they have chosen to continue to court and may well mean their costs are rejected or reduced.

[Hidden-man]

I'm working on budget sheet and will take copy of email trail showing the offer, notification of change in circumstances and revised offer. The statement if costs is also £600 less than a recent letter they sent. The letter felt more like pay now and avoid £1900 costs so did wonder if the statement is another way of making me worry anout the total being more than if I just agree to their proposal. How do I find out which track, court papers say county court, is this the track ?

[sillygirl1]

If the debt is under £5,000 then it is small claims, and £1900 costs soulds like blatant intimidation - they are on a last gasp attempt at fleecing you so need to build their case stone by stone.

 

Stone by stone we can help destroy their claim.

 

I would hand the statement you mention to the court as well and say it is intimidation and a blatant attempt to obtain more money than they would be entitled to.

[Hidden-man]

They have sent a couple of letters without prejudice so i'll check the £1900 letter and if they have not added that I will show that and the statement to the court. Are there fixed costs they can claim or can they stick any hours / charge amounts they want in ?

[caro]

I would suggest that you leave the WP letters until it comes to the question of costs which comes at the end of the hearing. I think that they can claim pretty much what they like, but it's the judge who decides whether or not you have to pay them. If you can prove your reasonableness in trying to settle they are unlikely to get what they want.

[ukaviator]

If the debt is under £5,000 then it is small claims, and £1900 costs soulds like blatant intimidation - they are on a last gasp attempt at fleecing you so need to build their case stone by stone.

 

Stone by stone we can help destroy their claim.

 

I would hand the statement you mention to the court as well and say it is intimidation and a blatant attempt to obtain more money than they would be entitled to.

 

It is often said that there is a “no costs” rule in the small claims court. Just to make things clear on the small claims costs side of things. this does not mean that a victorious party cannot recover any costs incurred in a small claims case. Part 27 of the Civil Procedure Rules sets out the maximum costs which a judge can order a party to pay. Whether or not the judge will order a party to pay costs is a matter for him to decide.

 

The costs awarded may depend on a number of factors including the relative financial status of the parties and their behaviour before and during court proceedings. If any costs awarded by the judge do not cover the expenses actually incurred, the party will have to pay them out of their own pocket. The rules on small claims costs give the judge a power to make a punitive costs order if he thinks that a party has behaved unreasonably. If the judge has decided to make such an order he may take into account all the costs that a party has incurred in either bringing or defending the claim before deciding how much the other side should pay.

 

Where the parties consented to a claim being allocated to the small claims track, although its financial value exceeded £5000, the rules on costs are different. The judge will be able to make the same order for costs as if the claim had been dealt with on the fast track (broadly speaking this covers claims with a financial value of between £5000 and £15,000). While these costs are still limited they are substantially more than could be awarded on the small claims track. If a possession claim has been allocated to the small claims track after the consent of the parties, the judge may again award costs as if the claim was on the fast track. So even small claims court can incur costs if the other party wins the case.

 

As you have been seen to be resonable here, the costs are not likely to be awarded as you have shown to be reasonable. The plaintiff has refused several offers to set up a repayment plan. I can't see the judge adding costs here. I would fill in your income and expenditure again for the judge to view as Caro stated earlier.

[Dot1]

Hi Hidden-Man,

The DCA uses all sorts of tricks and unfortunately most of us still fallvictims. I was in a similar situation as you, whereby I did not receive claimform and received judgement by default through Northampton CC. I decided toignore it and with all the intimidation, I gave in and started making monthlypayment. After a year when the CCJ was issued the greedy DCA were not satisfiedand applied for interim CO, I did nothing and then they went for CO and thehearing date was set. I then stated doing research and shared it with CAGS whowere very helpful but it got to a point that I had almost given up. Apart fromdefending the CO on the similar grounds mentioned in the thread because theproperty was in join names and we had children too. I also decided to CHALLEGEthe CCJ because I had not received the court papers.

There is a section where you can tick to confirm that there is anotherhearing set for the same case and you state the date. In my case this did helpme as at the hearing I mention that I had applied for the CCJ to be set aside.The case was the adjourned and a new date was set for both hearings startingwith Set Aside hearing then followed by the CO on the same day. On the hearingdate the judge agreed to set aside the CCJ therefore the CO hearing was dismissed.

I am not saying am an expert in this area but just sharing my experiencewith you and would suggest you try this option too. Perhaps someone with moreknowledge will comment on this.

In my opinion it is woth trying this too as it might help. I noticed that the hearing is on 8th but you could still do it tomorrpow if you choose to.

Good luck.

[Dot1]

I also think that if the Judge agrees to set aside the CCJ then it will give you the opportunity to deal with the matter properly.

As the DCA will have to serve a new claim form.

I agree too that if you were to try to set aside the CCJ and is refused, they will not get sales order considering that the property is in joint names and being a family home to the children.

Just to be sure, is the hearing for sales or final charging order?

 

Dot

[Hidden-man]

The hearing is for a sale order. I've been in touch with national debt line who have advised due to length if time since ccj was issued it would be unlikely that I would be able to get it set aside. My defence of the sale order at the minute is going to be: 1. Single name debt. 2. Joint name on property. 3. Family home with children subjected to undue stress if granted. 4. Previous attempts have been made to reach settlement arrangements. 5. Wifes ill health and this will cause further distress if granted.6. If cost letter is without prejudice then will also point out discrespency in amounts being claimed and designed to intimidate...I'm going to see if we can get duty solicitor to attend or offer further advice particularly on legal arguments. The additional evidence will rely on which has not been submitted (due to it taking place after we sent in our defence), will be my wifes note from doctors confirming still unfit for work, an income budget sheet, the email detailing attempts to reach agreement, the statement of costs they have sent and if possible the letter with the different cost figure.

Edited January 8, 2012 by Hidden-man

[Dot1]

Hi,

Those grounds look OKs. Mine were also similar to those.

In my struggle at the time, I contacted National Debt Help line too and got the same advice.

My CCJ was over a year old. It was issued in 2008 and I managed to set it aside in March 2010.

Yes, it is easier to deal with it as soon as it is issued but I do not think there is a time limit if you have good grounds.

Not recieving the Claim Form is one of them and besides from your story, though you have made attempts to resolve the issue but it is clear that the DCA are just after your home.

I think a reasonble Judge will not miss this.

You loose nothing by trying it. I know it will cost you £75 or so but I still think is is worth it because if you make the Set Aside application, it will have to be delt with before the actual Sale Order hearing and that will give you the an oppotunity to state your case before the Judge.

I hope other people will come and comment on this suggestion. As I said earlier on, this is just my experience but I am not in any way claiming to be an authority in this area.

 

Thanks Dot

Edited January 8, 2012 by Dot1

[Dot1]

The hearing is for a sale order. I've been in touch with national debt line who have advised due to length if time since ccj was issued it would be unlikely that I would be able to get it set aside. My defence of the sale order at the minute is going to be: 1. Single name debt. 2. Joint name on property. 3. Family home with children subjected to undue stress if granted. 4. Previous attempts have been made to reach settlement arrangements. 5. Wifes ill health and this will cause further distress if granted.6. If cost letter is without prejudice then will also point out discrespency in amounts being claimed and designed to intimidate...I'm going to see if we can get duty solicitor to attend or offer further advice particularly on legal arguments. The additional evidence will rely on which has not been submitted (due to it taking place after we sent in our defence), will be my wifes note from doctors confirming still unfit for work, an income budget sheet, the email detailing attempts to reach agreement, the statement of costs they have sent and if possible the letter with the different cost figure.

 

When was the CCJ issued?

I am not suggesting that you should not defend the Sale Order hearing but

just to to put in an application and mention at the hearing and hopefully the

Judge will listen to you and adjourn the hearing until after the Set Aside applocation.

 

Dot

[Hidden-man]

The ccj was issued in 2009, but to be honest we just don't have the cash to apply for a set aside. We have enough to pay bills and put food on table but even thats stretching it. My wife has applied for extra benefits but as her employment only ended last week we don't know what we will be entitled to yet. Can anybody give me some legal arguments that wr could use. I've seen the various posts and understand some of it but would really appreciate some more advice in simple terms I could use.

[sequenci]

Not recieving the Claim Form is one of them

That isn't actually a sufficient ground for set aside UNLESS the creditor had sent it to the wrong address intentionally. You'll also need a reasonable prospect for defending the judgment - i.e. a legal reason as to why the money is not owing to the company.

 

The strongest argument to protect the property is to argue that the children's interests in the property far outweigh the creditors in accordance with the trust of lands and the appointment of trustees act 1996. This should stop a sale order being granted - although you may need to demonstrate that you can afford to remain in the property given the current circumstances.

 

Here's a great site to check up on benefit entitlement: http://www.turn2us.org.uk/

[Hidden-man]

I'd mis-read the statement of costs. It does contain the draft order and costs they are seeking are £1500 which is still different to the letter they have sent so will raise this tomorrow.

Costs.pdf

[citizenB]

Good luck for tomorrow.

 

Please let us know what the outcome is.

[Hidden-man]

Will do and thanks for all the help and support it has been amazing !!!!!Any last minute tips or advice.

[caro]

Make sure all your paperwork is in order so you can find everything easily.

 

If you haven't done so already, make some notes of what you want to say.

 

Allow yourself plenty of time to get there.

 

Be respectful to the judge.

 

Try to keep calm and listen. If there's something you don't understand - ask for it to be explained.

 

Have a pen with you so that you can make notes, or jot down any questions that spring to mind.

 

Don't be surprised if the other side try and speak to you before you go into court. Don't let them intimidate you into accepting something you aren't happy with. Just tell them you'd rather go into court and let the judge decide - if that's what you want.

 

Good luck.

[42man]

And do call the judge 'sir' or 'madam'....! very best of luck...

[Hidden-man]

Now that was a day I don't want to repeat again.

 

The order was suspended.

 

We arrived early and while we we were waiting the opposinh solicitor arrived and asked if we wanted to talk.

I agreed and listened and was all prepared for a fight.

My wife was a nervous wreck and in tears.

To be fair he was spot on, there was no intimidation or threats.

He waffled a bit so I interupted and said we have a proposal of £25 per month until June,

then the car is paid and I can increase to £65.

 

I also wanted the order to include that no more proceedings would occur while payments were made.

He was an agent for the solicitors I have been dealing with so he had to get authority from them.

He called and spoke to them in front of us and didn't deviate from what we had agreed.

They approved it so we went before the judge.

 

The solicitor explained we had reached an agreement but it was roughly written.

The judge told him to get out and write it properly.

We went back in and judge approved order.

I disputed costs, solicitor argued they were reasonable

I contested that they could have been avoided and discrepency in figures.

The judge knocked £500 off, I would have preferred more but was happy with a reduction.

The solicitor had re-drafted the order to say any proceedings civil or insolvancy are stayed while payments made,

which the judge did comment that was good and made sense.

 

After the hearing the solicitor then spoke to us for another 20 minutes or so regarding my wifes possible constructive dismissal claim.

He wasn't pitching for the business and seemed genuine throughout.

 

I think we really dropped lucky with the opposing solicitor trying to help.

End result order suspended, payment plan I wanted agreed and we keep the house.

 

Again I can't thank you all enough for all your advice, support and giving me the confidence to noy just cave in.

 

THANK YOU

[Ell-enn]

You must be soooo relieved. Well done !