Help - Aggressive response from Northern Rock

[zubo]

Zubo

 

Yes exactly that, my 'set aside' date is 12th feb, at my local court south shields 3.00pm.

 

BJ

 

then if you have already been to court and won, did you not submit your bundle to NR and the Court???

 

in other words why would you submit your bundle again?

[zubo]

Guys

 

Its late for me - have to be up at 4:00 to catch a flight.

 

Do not panic - google Set Aside to do some research, I will see what I can find.

I will also pm some guys who maybe able to help you.

 

Just don't worry:

 

If you get the Court papers re Set Aside, then read the instructions from the court regarding what you can do and reply here with the details. The Court is usually pretty good and gives you various options.

 

Let us know so we can help you better.

[tamadus]

ok first thing is DONT PANIC

 

I have only quickly run through the thread and could use a bit more information but here goes anyway.

 

Firstly it is not unusual for them to apply for a set aside when a judgement has been entered by default. Judges actually seem to prefer this to a default settlement.

 

Secondly as long as the case is on the small claims track then your liability for costs is limited.

 

Now you have 2 options, you can either agree to the set aside or you can argue against it. If you agree it simply means the court will set aside the default judgement and schedule a date for a hearing. It is very unlikely they will attend a full hearing anyway and normally settle prior to that happening. But you should still do your homework and prepare for the possibility of a hearing.

 

The other option is to fight the set aside. This should be fairly easy but again you need your homework, a simple letter to the court detailing your argument should suffice. The first argument that comes to mind is that they have filed several similar if not the same defences in the past and settled them all before a hearing, if you word it right the judge may even striek out their defence on the grounds of abuse of privilege.

 

In either case you need that homework or you will fail. You need to do some research on the site for very similar cases (preferably ones where the claimant didnt come out all guns blazing and confused) get your thought together and coherent, a Judge will not take kindly to irrelevancies. Make sure you have and understand the relevent points of case law and the UTCCC. The basic court bundle in the Templates library should help with this.

 

Paul speak to your local court and explain that a telephone hearing is inconvenient but you could do it if you can attend at the court for it, they may be able to help by setting it up at the offices. Even so be ready with the items you need to quote from.

 

All I can do is offer advice, you have to do the actual work of putting it together, unless the procedure is followed virtually to the letter it can and will flounder simply because you show them your not fully familiar with the process. The law is about knowing what parts of it you need and using it with confidence. The law is on our side as long as we use it correctly.

 

Paulif did you issue this through moneyclaim online? if so give their helpline a phone call over the telephone hearing and ask their advice. That's what it's there for so use it

 

to PM someone click there name on any post and when you get to their profile clikc the send a private message link.

 

 

hope this helps.

[N#1N#2]

Tamadus

 

Thanks for the advice.

I followed all the steps and used all the relevant documents as found on this site.

Filed my cliam with MCOL and followed all the steps, the Northern Rock did not respond to the letters from the court therefore I did not submit any 'court bundle' as it was not required. Thus a judgment by default was issued .

I will prepare mu court bundle and the copy of the MCOL letter and send to the court and the norther rock as part of my preparing before the 12th.

I have no issues in that case in the case is set aside and a new hearing date is applied as this sounds like a delaying tactic.

I may make reference in the letters that the Bank have used this process 'lost the documents internally therefore missed the origianl court before and wish the court to set aside'

 

any further advice would be appreciated

 

Paulif

 

If you get some good advice from a moderator please PM me

[paulif]

my situation is still as follows:

 

i have a judgement by default from the court (through money claim online)

i haver not heard anything from the court but i have recieved a number of agressive and threatening letters from the bank

 

thanks so much for all your help guys

[Glenn UK]

The case for arguing against the stay is good especially where the defendant didn't comply with the various rules and procedures of the court in your claim.

 

However, the defendant will argue strenuously that their behaviour in other unrelated claims is not an issue.

 

You need to include a reference to the Court of Appeal ruling in the case of Mullen Vs hackney Council where the appeal court upheld a judges right to take account of the behaviour in unrelated cases when dealing with matters before his court.

 

By way of background, Hackney had breached an order instructing them to carry out repairs as i recall. They had done this previously and had not been fined.

 

However, in Mullen Vs hackney the court said enough is enough and fined them 5K, the court of appeal upheld this judgement.

 

Hope that helps.

 

Glenn

 

PS if you want to get some further info or ideas, have a look at my thread Glenn Vs Abbey, I posted some notes in there about getting abbeys defence struck out which might prove useful.

 

i have since withdrawn that application for reasons which i wont go into now, but will in the next couple of days become clear.

[tamadus]

very good point about Hackney, Glen

[zubo]

I the request for a Set Aside is normally accepted by a Court unless there is sufficient argument presented by the other party - that is why you need to argue the case ahead of the appearance.

 

ok they are applying

 

13.2 Cases where the court must set aside judgment entered under Part 12

The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly

entered because –

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in

rule 12.3(1) and 12.3(3) was not satisfied;

12.3 (1) The claimant may obtain judgment in default of an acknowledgment of service only if –

(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and

(b) the relevant time for doing so has expired.

 

They cannot claim 12.3 (3)

 

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and

12.3(3) was not satisfied;

 

and also

 

13.3 Cases where the court may set aside or vary judgment entered under Part 12

(1) In any other case, the court may set aside(GL) or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

 

___________________________________________________

 

So - if you check with each other and ensure that you have both used the same address for NR on your N1 then a letter to the Court

 

Dear Sirs,

It has been brought to my attention that in Judgement 1234 at abc county court where judgement was given against Northern Rock, they have also applied for a Set Aside using the same arguments of non-service from the Court. It seems highly unlikely that this is the case.

As to the defendants arguments that the defendants have real prospect of defending the case, there are identical cases where the defendant has been unsuccessful as in (search for Northern Rock here - get the court case numbers from folk who posted) or settled out of court.

It is my belief that the Judge should exercise his discretion as in quote case above and deny the request for a Set Aside in this case.

 

Good Luck

[Glenn UK]

Guys

 

if you want to fight the set aside you will need to do some work and take thier defence apart section by section and although the letter above is a good start its no where near adequate.

 

If you want some ideas have a look at my thread Glenn Vs Abbey where i applied for the defence to be struck out in isolation of a default judgement.

 

i have since withdrawn that application for reasons which i cannot go into right now, i will however, post the reasons probably towards the weekend.

 

What i would say is that i think it had a good chance of getting their defence struck out but exposed me to costs.

 

You on the other hand arent exposed to costs because it is they who have defualted and are applying for the judgment to be set aside. If you win or lose the court wont award costs since you are the respondent in this issue and not the claimant i believe.

 

JMHO

 

Glenn

 

PS if it were me id go with a good strong opposition to their appeal plus i would add in a reference to Mullen Vs hackney for good measure.

[zubo]

Guys

 

Glenn has the experience, I just hate their tactics and don't have the knowledge you really need.

 

You should prepare yourself for the case with the scripted arguments everyone uses.

 

It simply occured to me that a letter ahead of the argument might make the court re-consider allowing the set aside simply because you can demonstrate that they have wasted the earlier court time when they could have attended and attempted to defend.

Incidentally - Glenn - if the set aside has been allowed, shouldn't they have filed their defence?

[Glenn UK]

Zubo

 

i suspect they will have their defence ready when and if they actually attend the set aside hearing.

 

For the claimants part they should prepare their arguments formally against the set aside. i doubt the defendant will expect much of a fight since I think they haven't had much of one previously.

 

If the claimants want to fight the set aside then they need to be preparing now and i would suggest using my thread as a template and if anybody else has similar info/ideas then post a link please.

 

If the claimants need assistance they can either post their questions/info and we can comment or they can pm me or a mod for help.

 

I am no expert and am learning on the hoof like the rest of us, but i firmly believe there is a very good case to get their defence struck out and its mainly about doing the work and being prepared.

 

HTH

 

Glenn

[N#1N#2]

guys

 

just getting back up to speed been away for three days.

 

I will submit a letter along the lines as above ideas and my court bundle as part of my objections to the banks objectives of trying to set aside.

will try and prove to the court that there was justification in my original cliam and should the bank attend the court next week then, we should here both arguments before the judge decides to set aside or not.

 

If the court get the judgement set aside will the court detail my options

 

thanks

[paulif]

i still have not heard from the court

what should i do?

can i apply for the warrant of execution and send the bailiffs in?

should i do this if i can?

[zubo]

i still have not heard from the court

what should i do?

can i apply for the warrant of execution and send the bailiffs in?

should i do this if i can?

Paul

 

Strikes me that something has gone seriously wrong at NR. My best advice to you is to contact the court and ask them if they have had any application from the defendent for a Set Aside. If they say no, then ask the question - what is the process for a warrant of execution and how long will it take.

 

The court staff are pretty good at providing the guidance - and will give you the info you need: hopefully they are out of time!!

 

good luck.

[Glenn UK]

Re arguing against a set aside, the arguments are not really the same as those for recliaming your charges.

 

YOumay want to argue about them, but your arguments have to be reasons why they shoudnt get their defence reinstated and their defence heard.

 

HTH

 

Glenn

[N#1N#2]

Glen Uk/Zubo/Paulif

 

Response from Northern rock today after i set them my draft outline for the court hearing next week

 

Dear Mr Berry,

Thank you for your email dated 4 February 2007, I am however, not in a position to comment on decisions made in relation to other banking institutions.

In relation to Northern Rock plc's application to set aside judgment in default, and having now had a chance to consider Northern Rock plc's draft defence, please advise as to whether you will provide your consent to default judgment being set aside prior to the hearing on Monday 12 February 2007.

I look forward to receiving your response.

I am tempted to respond along the lines of, yes I will provide consent only when I recieve the full balance due and possibly look at the acceptance letters on this site

Is this wise???

thanks

[gizmo111]

Write back saying you will agree to set aside if they agreeto your draft directions - enclose a copy of the ones on site.

[N#1N#2]

gizmo111

 

Will check the site for 'draft direction' unless you have the links

 

But great help

[Glenn UK]

Personally i dont think you should make it conditional, either agree or dont.

 

Trying to tie this in with something you obviousely havent raised before is not imho a good idea.

 

If you want to ask the court to consider the draft orders about, then you should make an application and ask them formally.

 

Dont use it as some kind of threat. As i understand it, a court wont make up an order on the spot to suit either party, if you apply and the court thinks you have a point they will make the order.

 

If you are going ot object then you had beeter have sorted your reasons out, you dfont have much time and you have to either do the work for your case or you need to agree the set aside.

 

If you are not prepared they will get thier set aside, if you dont apply they will get their set aside.

 

Seems to me unless you have been doing some serios work then you should just consent.

 

JMHO

 

Glenn

[N#1N#2]

Glenn Uk

 

I think and I am confident i have done some work to object.

 

I am using the basic court bundle (not previously seen by the court or the northern riock) and a objection to the court that the Northern Rock are using a common thread of ignoring the MCOL, then defending this by stating the paperwork has been lost in there system, I am aware of two other cases were this has happened (judgement awarded by default), also aware of one case were they settled out of court.

 

Ok they get they set aside, what are my options after this??

 

but thanks for the advice

[N#1N#2]

Glenn UK

 

not even agree to set aside only when you pay my money into my account???

[Glenn UK]

From what you say you don't have a hope in hells chance of getting the set aside refused.

 

The court bundle from the site is not the way to go, thats not its purpose.

 

You need a legal reason why they should not get their set aside, maybe they haven't complied with relevant court directions and procedures or maybe their defence is bare denial, or there are significant mistakes in their defence. I'm sure there are other reasons but these are the ones applicable in my case.

 

You need evidence and an argument not just wing it on the basis of the unlawfulness of the claim. Thats what a trial will deal with.

 

You should be aware if you oppose it without having a reasonable argument the court could find you unreasonable and award costs against you.

 

Arguing the charges are unlawful has nothing to do with this process unless you relate it to why their defence is inadequate.

 

And no you cannot link the issue of the set aside to payment into your account.

 

Edit By the way what you are alleging they are doing is a serious allegation and unless you have proof they could get pretty ****ty about an allegation like that. What do you actually know?

 

JMHO

 

Glenn

[N#1N#2]

Glenn UK

 

 

You response may be harsh but no doubt fair,

OK i agree to the set aside, i suppose pointless dragging it out until late in the week.

 

How do i play things then, surely I don't give up??

[N#1N#2]

Glenn UK

 

So moving on, it looks like i need to do some more ground work and issue some sort of disclosure and have there defence 'struck out'

[tamadus]

Bjberry, the set aside is not a real problem and the Judge will probably prefer the chance to get them into his court, they dont particularly like default judgements.

 

As Glen says any objection to it has to have a legal basis. I'd allow it and then get on with the real reason your at court, claiming those charges back.