I need help to Serve a writ to recover a loan

[burmafriday]

HI Andy

thank you for your fast reply.

I did not submit this using MCOL. I did it through Northampton, but "manually"

i will check out MCOL and establish what i can do.

are there any other guides or reference material that you know of which i can look at ?

many thanks

BF

[Riz0]

Hi burma,

 

This is excellent news.

 

The defence has been struck out. You'll be pleased to hear there is no need to do an application. I would check with the court to confirm that they will send you a copy of an order confirming the strike out. Once received, please send the following email to the court with the appropriate changes, please mark it urgent:

 

Dear Sirs,

 

Claimant's name -v- Defendant's name

Case no.:

 

I am the Claimant and write with reference to the above matter. Please place this email before the District Judge dealing with this matter.

 

By way of a telephone conversation with the court on 6 November 2013, I was informed that the Defendant's statement of case has now been struck out due to repeated non-compliance with the court's order. Please consider this email a written request for judgment to be entered in my favour and for an order to be granted on the following terms:

 

1. Judgment be entered in favour of the Claimant in the sum of the Claimant in the sum of [£XX,XXX.XX], payable within 14 days.

 

2. The Defendant pay the Claimant's costs, summarily assessed in the sum of [£X,XXX.XX], payable within 14 days.

 

I attach a copy of my signed N260 statement of costs to date as evidence of the amount referred to above in respect of my costs.

 

I trust the above is sufficient, however should the court require anything further, please do not hesitate to contact me on [01234 567890] or [emailaddress@email.com].

 

I would like to thank the court for its assistance.

 

Yours faithfully

 

 

[burmafriday]

 

 

Some notes on costs:

 

1. You will need to provide a statement of costs, but please do not over exaggerate and just be honest. Judges are not stupid. You can find form N260 here: http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n260-eng.pdf

 

2. Claim costs for your time at £18 per hour + disbursements at the exact cost. E.g. if you spent 5 hours in correspondence, put 5 in the first box in the right column, 18 in the second. The spreadsheet will do the sums. Disbursements such as your court fee should be claimed in full.

 

3. As your claim has been determined at the DQ stage, you have avoided most of the costly exercises involved in a full trial (disclosure, witness statements etc.). So your costs shouldn't be great.

 

Interest/judgment amount:

 

1. Use a simple interest calculator, such as this one: http://www.bllaw.co.uk/services_for_businesses/insolvency_and_recovery/simple_interest_calculator.aspx

 

2. From what I recall you may have issues determining the exact "due date" of the debt to use as a starting point for the interest accruing. I would use the date of the letter you sent to your friend demanding the money.

 

There is a very small chance the judge asks you to make an application... but unlikely. When you get this you should get the judgment order and we can start thinking about enforcement and recovering money - but the disputed part is over. The next phase will be about the practical position. Does your friend have any money/property or is he in employment? I don't want us to get of ourselves just yet, but you need to start thinking about these points.

[burmafriday]

Hi Andy

i do not understand why my message showed up twice. Thank you for the link. I read though it and it is really helpful.

 

Hi Riz0

Yes i was waiting to the official confirmation from the court. I thought it would arrive on Friday but it still has not arrived.

But, Thank you for your message. i will do as you suggested and of course, i will get back to you and let you know.

 

All the best/BF

 

Hi Riz0

Thanks for your instructions - they are most helpful. i have done pretty much everything as per your suggestion.

regarding interest - i calculated the interest due as one month from the date of the last loan payment i made.

this is actually in my claim. so my claim included loan amount plus interest from 2008.

so are you saying that i should change this and apply interest from the date of my written demand?

 

Thank you for your help.

all the best/BF

 

Hi Riz0,

i phoned the court asking them to send a copy of an order to confirm the strike out.

They said they do not do that any more. I have to write and apply for judgment and submit form N225

so i will complete this form and submit it with completed form N260 for costs, and the letter as suggested by Riz0

with suitable adjustment.

I guess thats it.

Do you agree? Please let me know. Thank you

BF

[Andyorch]

You wont be able to use MCOL in that case.....try using the N225...otherwise it will have to be an N244 and draft order.

 

Odd one this because even though they have submitted a defence the defence has now been struck out so in effect a default judgment could apply.

 

Strike out order by the court that either all or parts of the defendant's statement of case are deleted. The deleted material can then no longer be relied upon. A court would need to find that either the statement of case discloses no reasonable grounds for defending the claim or that it is an abuse of process or it is likely to obstruct the court's just disposal of the proceedings or that the defendant has failed to comply with the CPR or a court order. A court, on its own initiative, can make an order for strike out.This provides the court with the power to dispose summarily of claims in furtherance of CPR 1.4(2)© of the Overriding objective. The court has a discretion to give an affected party an opportunity to make representations.

 

Read here :-

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part12 PD 11

 

[burmafriday]

Hi Andy

yes thanks for this. You are absolutely right.

I believe the strike out was because the Defendant failed to comply with a CPR court order where he failed to submit DQ.

He was supposed to submit this on 14th Oct. he did not.

The Court then issued him with an order to submit it on 24th Oct. again - he did not.

Hence the strikeout.

But based on your comment, even if i get judgment, he could come back some time in the future and submit an application

for the judgment to be "stayed"

In any event, i have now submitted my application for judgment as advised by Riz0 and the court officer.

I will let you know the result as soon as i hear from the Court.

thank you again.

BF

[Andyorch]

" But based on your comment, even if i get judgment, he could come back some time in the future and submit an application

for the judgment to be "stayed"

 

He will only have a limited time to vary/set a side the judgment...it cant be stayed

[burmafriday]

Hi Andy,

thanks for your message, Yes - i will definitely get in touch as soon as i hear from court.

thanks very much.

BF

[Riz0]

Apologies for the late reply. But yes, what you have done is fine - requested judgment and sent covering letter/schedule of costs. With regards to interest, keep it consistent with the way you have pleaded it in your claim for ease but if you have made an amendment, it is no biggie.

[burmafriday]

Hi riz0

thanks for getting back to me. i will let you know as soon as i hear.

thanks again and all the best

BF

[Riz0]

It appears my code tags in my long post above have ruined the presentation of this page. May be one of the mods can amend/edit the post to add some more line breaks? Sorry everyone.

[burmafriday]

Hi Riz0 -yes I saw that

but i dont know how that is caused. Its OK - i was able to follow it without a problem

and I am sure everyone else can

we just had to scroll to the right.

 

But yes - its a system problem and may be those system guys at CAG website can sort it out..

All the best/BF

[burmafriday]

Hi Everyone

 

A belated Happy New Year!!. I am terribly sorry I have been missing but i have been extremely ill.

I was down with Pneumonia all throughout December and the new year.

I really have not been able to do anything!!!

 

I have received judgment - it basically said

 

Judgment for Claimant

To the Defendant

You have not replied to the Claim form

It is therefore ordered that you pay the Claimant £XXX for debt (and interest to the date of judgment) and 0.00 for costs

You must pay the Claimant a total of £ XXX forthwith.

 

The Judgment was dated 20/11/2013. - of course, i have not heard anything from the Defendant and he has not made any effort to contact me.

 

I can see the Defendant messing around - by apply for judgment to be set aside ... for what ever reason... as I guess he can make up any reason.

 

On my side I what do i do next?

1. write to the Defendant and ask for full payment?

2. Apply to the court to appoint Sheriffs for collection of the Debt?

 

all the best/BF

Edited January 20, 2014 by burmafriday
spelling

[burmafriday]

Hi everyone

I just want to thank everyone for help and advice. In particular,

Andyorch and Riz0.

Thank you for all you help

All the best

Burmafriday

[Andyorch]

Hi burma

 

Where are you with this at the moment?

 

Regards

 

Andy

[burmafriday]

Hi Andy

great to hear from you.

I have applied to Northampton CCMC County court for a combined certificate of judgment

and request for writ of fieri facias.

 

I received it today, sealed by the CCMC..

I am now submitting this to my local county court so that Sheriffs may be appointed

to proceed with enforcement.

 

Thats where I am at this precise point.

 

There is one thing Andy - he threatened to "come round and kick my head in" if i send bailiffs to his house.

How shall i deal with this? Its was verbal and there were no witnesses.

 

I look forward to hearing from you.

Thank you

Warm regards

BF

[Andyorch]

Perhaps nip into your local Police Station and just report it ...then you have it on record but inform the police why the threat was made.I doubt very much he would follow the threat through.

 

Regards

 

Andy

[burmafriday]

HI Andy

yes i shall do that.

but regarding following through with CCMC and appointing

Sheriffs etc. - thats OK right?

thanks

BF

[Andyorch]

Yes thats fine BF

 

Andy

[burmafriday]

Hi Andy

you wont believe this but the defendant claimed that he did not receive judgment. he wrote to the Court on

29th and sent me a copy which i received this afternoon. I am going to continue and proceed as above.

 

the judgment was around 10/13 nov.

 

See my note #89 - i guess he will try and have the judgment "stayed" - do you think he is within the time ?

 

all the best/

BF

[Andyorch]

Writing to the court will have no effect unless he makes application...but then its 2 and half months so I would not consider that prompt.

[burmafriday]

Hi Andy

thanks so much for yr fast reply.

yes i guessed that also. i shall carry on regardless.

all the best/BF

[burmafriday]

Hi Andy

do you know how i can complete the form 53 - Writ of fieri facias

i need to know what to insert in this section:

 

TO: “ .…..…, an enforcement officer authorised to enforce writs of execution issued from the High Court

 

do I nominate a Sheriff or should this be done by the court ?

 

thanks

BF

[Andyorch]

Hi Burma

 

I assume you have completed N293a, which is a combined certificate of judgment to enforce the judgment by a Writ of ‘Fi Fa’ (Fi Fa is the name for a Writ of Execution in the High Court). You can get Form N293a from Her Majesty’s Court Service website at http://www.hmcs.gov.uk or from any County Court office.

 

When issuing a Writ, you will need to either name the Authorised High Court Enforcement Officer, or address it to the “Authorised High Court Enforcement Officers of England and Wales” and the Writ will be assigned to a High Court Enforcement Officer through the cab rank system called NICE Sheriffs.

 

If you want to take advantage of any transfer-up service offered by High Court Enforcement Officers, then just ring the High Court Enforcement Officer's office of your choice and they will help you on what paperwork is needed. Use the section on our website called “Directory” to find the High Court Enforcement Officer you want to use. Usually, all the High Court Enforcement Officer will need is the form of judgment from the Court and they will convert this into a Writ for you.

 

If you want to prepare the paperwork yourself, when you get form N293a you must complete parts 1 and 3, and send these to the Court where the judgment was made. If you do not complete it fully, the Court may have to return it to you. You must state the date of judgment and the amount the Order was made for, including any additional costs allowed by the Court since judgment; the total of any interest that has accrued on the judgment and, if appropriate, the daily rate. There are notes on both sides of the form, which you need to read to ensure you have completed the form correctly.

 

Once you have your sealed form N293a, you may then issue your Writ of Fi Fa (form 53 downloadable from the HM Courts service website), which is sent to a District Registry of the High Court with the sealed N293a, Writ of Fi Fa and Court Fee for sealing.

 

Once you have received the sealed Writ, the original sealed Writ should then be sent to your chosen High Court Enforcement Officer.

 

If you want any advice on how to complete the paperwork you can speak to any High Court Enforcement Officer's office; ask the Court staff for assistance in either the Court where the judgment was obtained.

 

Regards

 

Andy

[burmafriday]

hi Andy

thanks very much. yes I have already received back my sealed form N293a, and am in the

process of issuing the writ of Fi Fa.

thanks again - you advice helped me very much indeed.

all the best/BF

[burmafriday]

Hi everyone

yes he's managed to have the judgment set aside.

after nearly 3 months.

Also, i was not notified of the hearing for the judgment to be set aside

can i object? what can i do now?

all the best/Burma