HCEO with Writ of Control imminent with NO notice of a CCJ

[cowboy1204]

Could anyone please help:

 

I need an URGENT Stay of Execution of a Writ as HCEO’s are about to attend my home and I believe this to be in error.

 

It is unclear on which form we apply for this, N244 or N245? And therefore it is also unclear as to the cost of this application.

 

A Consent Order was granted to a Claimant as we were trying to do the right thing and also to not go to court.

We got caught out as our limited company was dissolve by CH without our knowledge.

So for a few weeks we traded as non-limited (but didn't know) so as soon as we found out the business ended.

 

Our suppliers solicitors got us for this small period when we traded as individuals, and took us to court.

 

We were unaware until the day of submission of the order that this consent order was a Tomlin Order,

thus giving us no time to seek legal advice.

 

 

We didn't even know what a Tomlin order was?

They took 3 weeks to draw up the order and it was signed at 5:45 pm on the day before the hearing.

Because of mistakes in spelling we had to sign it a total of 3 times in that last day.

 

The Tomlin order states my home address, and myself T/A incorrect business name!

And as we are litigants in person is also against CPR so I believe?

 

After paying the claimant successfully for over a year the claimant wanted more money.

 

When I couldn’t pay, the claimant entered a judgement, and so gained a Writ Of Control.

 

However the Judgement was entered at our business premises (not listed on the Tomlin Order) where the business has been dissolved for 2 years?

 

We got into this mess because the business dissolved so the claimant knew the business no longer traded,

and therefore we were not afforded the chance to defend ourselves or receive any prior notice;

we were totally unaware until the writ came through the door.

 

The claimant has actually traded with the new landlord at our old business for nearly 2 years,

and had addressed every document to our home address so I can only say that this judgement is seriously flawed.

 

How can they make a judgement, and send court papers to an old address,

when they have been sending paperwork to my address for 2 years?

 

 

This is just so we didn't get ANY notice of what they were up to?

 

We therefore intend for the Writ to be stayed until we set aside not only this vexatious and fraudulent judgement, but also the Tomlin Order.

 

Form N245 seems to be to stay a writ if you cannot pay, which we are not necessarily stating at this point. So which form do we use and how much do we pay?

 

Any further help would be appreciated as I have a pregnant wife and 2 young children at home

and it will not be nice for them if HCE show up, but of course they will not be gaining entry.

 

Many thanks

[doggone it]

A Stay of Execution is applied for on an N244. N245 is to Suspend a Warrant where the County Court Bailiff is involved & it also allows you to apply for a Variation Order - to make affordable payments.

 

What were the terms of the Tomlin Order?

[cowboy1204]

As follows

plus I feel its worth mentioning the CCJ is for £500 MORE plus COSTS plus INTEREST than the amount agreed in the Order below

and repayments of over £2000 have ALSO not been taken into account making the CCJ over £2.5k more than the consent order???

 

 

1. The parties having agreed to terms in full and final settlement of the Claim as set out in the Schedule hereto,
   
2. all further proceedings in this Claim be stayed, save as for putting the said terms of the settlement into effect with liberty to apply for the said purpose.
   
3. There is no Order for costs.
    
   We consent to an Order in the above terms
    
   Dated this day of 2013
   

…………………………….

Solicitors Address

…………………………….

My home address

……………………………..

 

My partners home address

 

S C H E D U L E

 

1. In full and final settlement of the Claim and all matters arising from this dispute, the First and Second Defendants will pay and the Claimant will accept the sum of XXXXXX inclusive of costs and interest (“the settlement sum”)
   

 

1. The First and Second Defendants do pay the settlement sum of XXXXX by way of forty two monthly instalments of £XXXX and one monthly instalment of £XXXX. The first instalment of £XXXX to be paid to the Claimant on or by 10 June 2013 and thereafter consecutive monthly instalments of £XXXX to be paid to the Claimant on 10th day of each month until the discharge of the settlement sum.
   

 

1. The First and Second Defendants are at liberty to repay the settlement sum of £XXXXX in its entirety at any time during the period of this agreement. The First and Second Defendants are at liberty to make additional payments over and above the instalments referred to in Paragraph two above.
   

 

1. If the First and Second Defendants fail to make the payments referred to in Paragraph two above by the due dates and/or the payments referred to in paragraph two fails to clear either in whole or in part any balance of the settlement sum of £XXXXX then outstanding will become payable immediately and the Claimant be entitled to enter Judgment against the First and Defendant for the balance of the settlement sum outstanding at that date.
   

[caledfwlch]

Whilst you are sorting this, don't forget to keep doors/windows locked * and hide your car/s/park them in another street, as no matter what may be claimed during a visit, the HCEO cannot force entry into a residential home, only into business/commercial premises.

 

*Not sure if they are still allowed to enter through open/unlocked windows.

[doggone it]

Did you break any terms of the Tomlin Order?

[cowboy1204]

Thanks Caledwlch, yep i'm aware of all that, and my car has Finance on it so that should be fine to park anyway.

 

 

doggone it - Only when they demanded I pay 3.5 times as agreed (£100 to £350/month)

[ploddertom]

 

 

doggone it - Only when they demanded I pay 3.5 times as agreed (£100 to £350/month)

 

 

Did they not apply to have the amount increased otherwise if you have done no wrong I fail to see how they can have done this. I would be asking for copies of what was submitted to the Court about this.

[cowboy1204]

I don't know as they sent everything to a business address that is no longer there - yet all other documents have been sent to my house over the last two years including the Writ, just the CCJ was registered at the business address??

[daverules]

Thanks Caledwlch, yep i'm aware of all that, and my car has Finance on it so that should be fine to park anyway.

)

 

Wouldn't rely on the fact that it's on finance at the moment, take a look at this thread, http://www.consumeractiongroup.co.uk/forum/showthread.php?445251-Goods-on-HP-a-Judge-says-they-can-be-sold(3-Viewing)-nbsp not sure if it concerns your case but taking the time to to mention it just on the off chance.

[ploddertom]

I don't know as they sent everything to a business address that is no longer there - yet all other documents have been sent to my house over the last two years including the Writ, just the CCJ was registered at the business address??

 

I'd be asking the Court for copies of the application especially if you have no knowledge of what happened. The HCEO is not at fault here as he is only carrying out the instructions of the Creditor.

[Andyorch]

Hi Cowboy PT as asked I look in.

 

Couple of points.......

 

Did you ever receive and was aware the claim pack before you signed the Tomlin Order?

 

The £500 variance may be section 69 interest & costs applied...you would need to look at the claimants particulars of claim to verify this.

 

The Judgment amount is incorrect by 2 k because of payments made so the last para of the TO needs to be addressed.

 

The Claimant was not allowed to apply judgment for the full amount...therefore the judgment is invalid.

 

The Claimant breached the Tomlin Order by proceeding to judgment because they did not allow for any redetermination or review of payments within the schedule and tried to apply this.

 

So.......you need to make application using the N244 to set a side the judgment first...fee will be £155 with a hearing...unless you inform the claimants as and why you are applying to set a side and with their consent they agree to allow set a side without hearing...in that case the fee will be £55.

 

With regards to the Warrant (Writ of Control) you can also use the N244.

 

As you face imminent enforcement action, then ask court staff for an available judge to hear your emergency application.

 

If you live a long way from the district registry hearing your application, ask for your travel costs at the "prescribed rate".

 

Also ask for costs of making the application.

 

Some courts require you to make two separate applications, each on its own N244. There will be a court fee for each form. One for setting aside the writ and the other for setting aside the judgment. Check with the court whether separate forms are required.

 

Regards

 

Andy

[ploddertom]

Many thanks andyorch for this, it is very much appreciate & may help the OP make a decision on what to do next.

[Bailiff Advice]

Excellent responses from Andyorch and Ploddertom !!

[cowboy1204]

Dear Andyorch and Plodderton

 

 

Many thanks for your fantastic replies. Sorry it has taken me so long to reply but I contacted the Court on Monday to get copies of the paperwork and I've been waiting for a reply ever since.

 

 

At first the lady at the Court said "copies" of documents were chargeable, but when I explained the full situation in that I had never received them in the first place and that surely I was entitled to them she agreed, as she could clearly see they had gone to the wrong address.

 

 

I ringing her again today she has put my case before a Judge?! Totally out of the blue that one.

 

 

As I only really emailed her a "summary" of what had happened, during the last few days I had been preparing an N244 along with a statement of case. I have now sent her this so the Judge has the full picture and not a summary. She said he hasn't looked at the details she sent him originally, so will hopefully get my statement before he looks.

 

 

I have been told to call back later this afternoon for his comments. Fingers crossed and thankyou guys as of course my statement is full of your "wording".

 

 

kind regards, and will post later today.

[ploddertom]

Many thanks for bringing us up to speed - fingers crossed it goes for you, be delighted to hear more when you have it.

[cowboy1204]

OK unfortunately all the Judge has said is that I need to fill in an N244 and request a hearing, which I knew already. The lady at the Court did try for me.

 

She has said that both the CCJ and the Writ have been made out to my business premises in the form of MY NAME T/A BUSINESS NAME. However as I have previously stated the Tomlin Order was made out to my Home Address, they knew the business ceased trading at that address 2 years ago, and the business name listed after the "T/A" is not the name I traded under?

 

Any thoughts before I send the N244? many thanks

[cowboy1204]

UPDATE: Just received a copy of the CCJ: The reason the claim was for 500 more than the Tomlin Order is they added costs and interest to the CCJ of 2500, then took off the 2000 I had paid: Surely schedule 4 of the Tomlin Order restricted them the Claiming only the balance of the amount owing?

 

It should also be noted that the original debt at the time of the TO was 11k and they already added 5k to this in costs and interest at the time of the Tomlin Order making the TO 16K ??

[cowboy1204]

I have been holding back on the N244 because The lady at the Court said the Writ was not made out to my address? I think they have made a mistake and I don't want to pay £155 for the priveledge of informing them? Also the inforcement notice is not compliant (doesn't show interest etc).

 

 

So Surely : the address on the writ is wrong then the law, Paragraph 9(a) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 says an enforcement agent may take control of goods only if they are on premises that he has power to enter under this Schedule, (or on a highway)?

 

 

(Huntress Search Limited (Claimant) v Canapeum Limited (Defendant) and DSI Foods Limited (Interpleader Claimant) [2010] EWHC 1270)

 

 

It is also not in a trading name that I traded under and is in the format "me t/a unknown company"

 

 

And wait for it; the Judgement was for £16500 and a HCEO has called at my premises today with a note through the door for £19120 !! Now I know this is wrong!

 

 

I have also found that the Enforcement

[cowboy1204]

any chance you could have a look at my recent posts please? many thanks

[Andyorch]

I have also found that the Enforcement........

 

Take a look at this for you over the weekend.

 

Regards

 

Andy

[ploddertom]

I think we may need to see copies of what you have - please don't post it here though, come back to you about this.

[cowboy1204]

I have also found that the Enforcement........

 

Take a look at this for you over the weekend.

 

Regards

 

Andy

 

 

Many thanks Andy really appreciated (and the last line was a cut & Paste error I forgot to delete!)

[cowboy1204]

I think we may need to see copies of what you have - please don't post it here though, come back to you about this.

 

 

Many thanks, let me know when you are ready and give me an email address.

[HCEOs]

I have been holding back on the N244 because The lady at the Court said the Writ was not made out to my address? I think they have made a mistake and I don't want to pay £155 for the priveledge of informing them? Also the inforcement notice is not compliant (doesn't show interest etc).

 

 

So Surely : the address on the writ is wrong then the law, Paragraph 9(a) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 says an enforcement agent may take control of goods only if they are on premises that he has power to enter under this Schedule, (or on a highway)?

 

 

(Huntress Search Limited (Claimant) v Canapeum Limited (Defendant) and DSI Foods Limited (Interpleader Claimant) [2010] EWHC 1270)

 

 

It is also not in a trading name that I traded under and is in the format "me t/a unknown company"

 

 

And wait for it; the Judgement was for £16500 and a HCEO has called at my premises today with a note through the door for £19120 !! Now I know this is wrong!

 

I have also found that the Enforcement

 

For info, the HCEO can enforce at any address where you reside or carry on a trade or business so even if the writ is in your old business address they can enforce at your home. The amount may not be wrong too as once you've added interest since date of judgment, the Compliance Fee, Enforcement Stage 1 and VAT it could easily be the figure you've quoted.

[ploddertom]

Here is the document from HMRC about VAT for differing debts enforced by Enforcement Agents.